Forging the Nation: Land Struggles in Myanmar’s Transition Period 9780824895327

Table of contents :
Contents
Illustrations and Tables
Preface
Acknowledgments
Abbreviations
Introduction
CHAPTER ONE The Context for Land Tenure Reform
CHAPTER TWO The State’s Quest for Legitimacy Opens Space
CHAPTER THREE The Ethnic Politics of Land
CHAPTER FOUR New Market Incentives Shape Norms
CHAPTER FIVE Ayeyarwady Region State-Citizen Negotiations
CHAPTER SIX Chin State Between State and Customary Institutions
CHAPTER SEVEN Kayin State or Kawthoolei Dual Administration
Conclusion
Notes
References
Index
About the Author

Citation preview

FORGING THE NATION

FORGING THE NATION Land Strug­gles in Myanmar’s Transition Period

SiuSue Mark

University of Hawai‘i Press Honolulu

The author acknowledges that permission to use the map of Myanmar in the Introduction was granted by Jacques Bertrand, Alexandre Pelletier, and Ardeth Maung Thawnghmung, who produced this map for their book Winning by Pro­cess: The State and Neutralization of Ethnic Minorities in Myanmar, published by Cornell University Press in 2022.

© 2023 University of Hawai‘i Press All rights reserved Printed in the United States of Amer­i­ca First printing, 2023 Library of Congress Cataloging-­in-­Publication Data Names: Mark, SiuSue, author. Title: Forging the nation : land strug­gles in Myanmar’s transition period / SiuSue Mark. Description: Honolulu : University of Hawai‘i Press, [2023] | Includes bibliographical references. Identifiers: LCCN 2022055947 (print) | LCCN 2022055948 (ebook) | ISBN 9780824894290 (hardback) | ISBN 9780824895150 (trade paperback) | ISBN 9780824895327 (pdf) | ISBN 9780824895334 (epub) | ISBN 9780824895341 (kindle edition) Subjects: LCSH: Land tenure—­Political aspects—­Burma. | Land tenure—­Burma—­Regional disparities. | Democ­ratization—­Burma. | Burma—­Politics and government—1988Classification: LCC HD860.7.Z63 M36 2023 (print) | LCC HD860.7.Z63 (ebook) | DDC 333.709591—­dc23/eng/20221205 LC rec­ord available at https://­lccn​.­loc​.­gov​/­2022055947 LC ebook rec­ord available at https://­lccn​.­loc​.­gov​/­2022055948 Cover photo: Land is central to the lives of a majority of the ­people in Myanmar, as evidenced by farmers tilling the land in Khindan town in Mon State, Myanmar. Photo taken by Sonia Leonard in 2019. University of Hawai‘i Press books are printed on acid-­free paper and meet the guidelines for permanence and durability of the Council on Library Resources.

​Dedicated to my parents

Contents

List of Illustrations and ­Tables

ix

Preface

xi

Acknowl­edgments

xv

Abbreviations

xvii

Introduction 1 Chapter One

The Context for Land Tenure Reform Chapter Two

The State’s Quest for Legitimacy Opens Space Chapter Three

The Ethnic Politics of Land Chapter Four

New Market Incentives Shape Norms Chapter Five

Ayeyarwady Region: State-­Citizen Negotiations Chapter Six

Chin State: Between State and Customary Institutions Chapter Seven

Kayin State or Kawthoolei: Dual Administration

27 43 65 84 111 134 151

Conclusion 173 Notes

187

References

203

Index

217 vii

Illustrations and T ­ ables

Map Myanmar with states and regions  6

Photo­graphs Farmer ­union strategizes the return of land from the Parliamentary Land Investigation Commission in Ayeyarwady Region in 2015  55 A plot in a shifting cultivation field that was left to regenerate  79 A signboard declaring that the military had returned land to a village in 2014  103 A ­lawyer mediates a conflict among farmers over land returned by the military in a lowland village, 2015  103 “Accountability workshops” in which farmers voice their prob­lems with land access to regional authorities in Ayeyarwady Region in 2015  127 Civil society organ­izations and state officials meet to discuss ways to secure community lands in Chin State in 2015  147 A soldier stands guard over a forest ­under the Karen National Union’s control  157

­Tables ­Table I.1.  Comparison of three regions in Myanmar  9 ­Table 1.1.  Classification breakdown of Myanmar’s total land area  33 ­Table 2.1.  Breakdown of land confiscation cases scrutinized by the Parliamentary Land Investigation Commission  52

ix

Preface

It was early December, seven months ­after Cyclone Nargis made landfall in the Ayeyarwady Delta on May 2, 2008, killing up to 150,000 ­people in the span of a few hours. I was sitting cross-­legged on the roughly hewn wood floor of a village elder’s newly reconstructed h ­ ouse. We would have met in the village meeting hall, but it was destroyed by the storm like most of the other structures in the village. Although I looked ethnically like him, the elder knew I was not from Myanmar and asked me to indicate on a map where I was from: Guangdong, China, and New York City. Despite the recent devastation, the impact of which was still vis­i­ ble all around us, the elder welcomed me with the graciousness reserved for special guests. He was dressed formally in a starched and pressed white shirt and a checkered sarong with a pattern typical of this region. As we settled down with a pot of tea and a plate of tea-­leaf salad, I asked him to recount his life as a farmer. He took a sip of tea and launched into his story. He said that most years, paddy plants fed by rain from May u ­ ntil November would be harvested in December, but the storm had brought in vast amounts of salty seawater, which destroyed most of the crop. The farmers had managed to salvage some of it, but it was not enough, and he and nearly all the villa­gers w ­ ere now eating rice donated by the World Food Program. He worried that ­unless the assistance from aid agencies was sufficient, many farmers would likely become more indebted and lose part of their farm plots to the informal moneylenders from whom they routinely borrowed. He added that in past de­cades, the plots of the farmers in his village became smaller and smaller, mainly b ­ ecause they w ­ ere unable to sell the mandatory quotas of rice to the military government, which punished them by reallocating part of their land to other cultivators who ­were able to do so. He feared that the landless farmers would not be able to make ends meet with earnings of approximately two US dollars a day. At the end of our conversation, he expressed his hope that I would be able to help them. I lived in Myanmar for a de­cade from 2008 to early 2019, first arriving ­t here to manage a livelihoods recovery program in the Ayeyarwady Delta, known as the country’s “rice bowl” for its high paddy yields. Throughout this period, I was xi

xii  Preface

a close observer of its politics, particularly t­ hose related to land. When I first arrived, I experienced the country as a place where time seemed to languish. I had to wait three months for approval from the military government to make my first trip to support farmers affected by Cyclone Nargis in the Ayeyarwady Delta. Upon arrival at my destination, I was asked to report to ten dif­fer­ent officers and provide the name of my ­father. ­These obsolete methods of control revealed the type of world I had stepped into: one that had been largely isolated from the world and slow to relinquish archaic practices. ­After the 2010 election, which marked the beginning of Myanmar’s transition to democracy, the new po­liti­cal environment allowed me to delve into the country’s land politics, a topic that was considered taboo by the government ­until then. I carried out research from 2012 ­until my departure from the country in 2019, ­after which I continued to closely monitor the developments in this area. My stay in the country spanned the term of the Union Solidarity and Development Party (USDP) government (March 2011 to March 2016) and the first three years of the National League for Democracy (NLD) government (starting in March 2016). The pro­cess of writing this book has also been a personal journey for me, as the questions I sought to examine in this book allowed me to reflect on my own ­family’s agrarian past. For the first three de­cades of their lives, my parents strug­ gled to survive u ­ nder the repressive regime of China’s Chairman Mao. A ­ fter the victory of Mao’s ­People’s Liberation Army in 1949, all land owned by landlords and better-­off peasants was nationalized and redistributed to small peasants and landless laborers. In 1958, as part of what Mao called the G ­ reat Leap Forward, all land was collectivized into communes. “He used to say ‘the entire nation is part of one checkers set,’ ” my ­father recalled. In the first four years of this movement, thirty-­six million ­people are estimated to have died during what is now known as the G ­ reat Famine, according to the historian Yang Jisheng. My f­ather recounted, “I can say that all we knew was starvation from childhood ­until adulthood. We got drained a­ fter working in the fields. E ­ very night, our bellies knotted up in hunger.” By 1978, soon a­ fter I was born, China started a gradual pro­cess of redistributing land and agriculture implements to h ­ ouse­holds. All collectivized production teams ended by 1984, when the country started to adopt a market economy. Next door in Myanmar, a­ fter the military coup in 1962, the Union Revolutionary Council, the supreme ruling body headed by General Ne Win, observed China while designing its own policies. In April 1962, the government a­ dopted as a blueprint the treatise “Burmese Way to Socialism,” distancing itself from the communist system espoused by Mao and embracing a plan for economic development built on the princi­ples of socialism, nationalization, Buddhism, and a

Preface  xiii

strong military state. The land tenure reform the government promoted transformed smallholders into tenants on state-­owned land. U ­ nder a procurement policy that lasted from 1974 to 2003, farmers w ­ ere forced to sell paddy to the government at reduced prices to feed civil servants and soldiers, and to gain export earnings. Further exacerbating extreme levels of rural poverty, the military promoted a market economy centered on plantation farms and extractive industries from 1988 to 2010, which led to extensive land confiscations throughout the country. In recent years, Myanmar has caught the attention of the world: in 2010, as the hopeful new democracy led by Nobel Laureate Aung San Suu Kyi; in 2017, as the perpetrator of ethnic cleansing ­towards the Rohingya, a Muslim minority that mainly resided in Rakhine State, bordering Bangladesh; and most recently in 2021, for the military coup that caused the country to descend into chaos and bloodshed. The most recent developments have led ­people to cast the country aside as a “failed transition.” However, this conclusion dismisses a larger pro­cess of po­ liti­cal change from 2011 to 2020 that was neither unidirectional nor predictable but that significantly changed the lives of millions. In this book, through examining the land politics that played out in the past de­cade, I set out to tell the story of how a country that emerged out of five de­cades of repressive military rule, since its first coup d’état in 1962, attempted to build a new multi-­ethnic democracy. The Ayeyarwady village head whom I met in 2008 would likely not have expected the reforms that followed the 2010 election, many of which would profoundly affect him and his fellow villa­gers. Reflecting on the transition in this book made it clear to me that, ­whether in Myanmar or China and regardless of the past, historic openings can serve as critical junctures for ­people to overcome dystopic pasts and to work ­towards brighter ­futures. However, on February 1, 2021, Myanmar was thrown yet again into a state of crisis by a military coup, the third in the turbulent history of the country. Military rule was reimposed, abruptly halting the country’s march t­owards demo­ cracy. The junta quickly imprisoned the po­liti­cal opposition and resorted to lethal force to quell public dissent, thinking that the p ­ eople would meekly obey as before. Instead, a civil disobedience movement was mobilized and hundreds of thousands of p ­ eople went on strike to prevent the junta from exerting its control over the country. Soon afterward, urban youth disillusioned with nonviolent means fled to the jungle and took up arms to fight the junta alongside ethnic armed organ­izations. It is evident that the military underestimated the extent to which the past de­ cade had forever changed ­people’s thinking about the type of country and ­f uture they deserve to have. The stories and the lives depicted in this book, in the context

xiv  Preface

of the land strug­gles that unfolded throughout the country, allow us to see how ­people’s thinking t­ owards the government and their view of themselves as subjects with certain basic rights evolved over time. As the book goes to press at the end of 2022, t­ hese changes continue to fuel p ­ eoples’ courage and resilience in fighting to steer the country back on course, all while making enormous sacrifices.

Acknowl­e dgments

The pro­cess of writing this book has been not only an intellectual but also a personal journey. Along this journey, my thoughts have been s­ haped by the numerous ­people whom I encountered. I thank ­every person who has shared an insight or left an imprint in some way. ­There are, however, a few ­people I would like to mention specifically. First, I would like to thank Professor Saturnino “Jun” Borras at the Institute of Social Studies (ISS) in The Hague, where I completed my doctorate in 2017. I had the serendipity of meeting Professor Borras at Myanmar’s first National Land Symposium in December 2012, for which he was the keynote speaker. At that time, I had just started working on the land issues in Myanmar, and so I reached out to him for some advice. A ­ fter a few exchanges, he challenged me to become an expert on Myanmar land issues, a challenge that would eventually shape my life in wonderful and unexpected ways. Professor Borras was key to shaping the “puzzle,” as he liked to call it, that I went on to solve. I would also like to thank Professor Max Spoor, who was my first promoter at ISS, a steadfast supporter and mentor, and crucial to the completion of this study. My heartfelt thanks go to Professor Ardeth Thawnghmung, Professor Mike McGovern, Professor Yoshihiro Nakanishi, Professor Miles Kenney-­Lazar, Graham Teskey, and Anders Kirstein Møller for reviewing full drafts of my manuscript at dif­fer­ent stages of revision and for providing invaluable advice and moral support over the long pro­cess. I am grateful to Dr. Ashley South and Dr. Jared Bissinger for further improving my manuscript with fact-checking. I would also like to thank the anonymous peer reviewers who painstakingly read the manuscript and provided highly constructive feedback for improving it. I am grateful to Masako Ikeda, executive editor at the University of Hawai‘i Press, for offering me guidance during the publication pro­cess and working diligently to shepherd the book to print. I am extremely thankful for the ser­vices provided by the press, including meticulous copyediting, layout, and design, as well as facilitation of a smooth publication pro­cess.

xv

xvi  Acknowl­ e dgments

It is impossible to express what Myanmar, my second home ­after the United States, and my community t­ here mean to me. Arriving t­ here in 2008 to respond to Cyclone Nargis, I was fortunate to have stayed for a de­cade, deeply involved with the country’s transition efforts. I am indebted to all the friends I made in Myanmar who shared their lives with me and taught me so much in the pro­cess. ­There are too many to name. The brave activists and rural p ­ eople who told me their stories hold a special place in my heart. Fi­nally, I would like to express my deepest love and gratitude to my parents, Kai Leong and Han Kem Mark, to whom I dedicate this book. Carrying their passports with the label “peasant” stamped on them, they took the courageous step to leave China right a­ fter the Cultural Revolution. Arriving in New York City in 1981, they labored to make a better life for their four ­children. They inspire me to dedicate my life to help ­others who dream of the same.

Abbreviations

ADB Asian Development Bank AFFM Agriculture and Farmer Federation of Myanmar AFU Ayeyarwady Farmers Union ASEAN Association of Southeast Asian Nations BGF Border Guard Force BRI ­Belt and Road Initiative BSPP Burma Socialist Program Party CBO community-­based organ­ization CHRO Chin ­Human Rights Organ­ization CITIC China International Trust Investment Corporation CMEC China–­Myanmar Economic Corridor CNC Chin National Conference CNF Chin National Front CRPH Committee Representing the Pyidaungsu Hluttaw CSO civil society organ­ization CSR corporate social responsibility DALMS Department of Agricultural Land Management and Statistics DHHS Department of Housing and ­Human Settlements DICA Directorate for Investments and Com­pany Administration DKBA Demo­cratic Karen Buddhist Army EAO ethnic armed organ­ization ECDF Ethnic Community Development Forum EIA environmental impact assessment EPLNR Ethnic Partnership for Land and Natu­ral Resources FAB Farmland Administrative Body FAO Food and Agriculture Organ­ization xvii

xviii  Abbreviations

FFSG Farmers and Fishermen Support Group FPIC ­free prior and informed consent FSWG Food Security Working Group GAD General Administration Department GDP gross domestic product GOM Government of Myanmar GPI Green Peasant Institute ICG International Crisis Group IDP internally displaced person KAD Karen Agriculture Department KESAN Karen Environmental and Social Action Network KHRG Karen ­Human Rights Group KIO Kachin In­de­pen­dence Organ­ization KNLA Karen National Liberation Army KNU Karen National Union KPC Karen National Liberation Army–Peace Council LCG Land Core Group LIOH Land in Our Hands LUC land use certificate MCRB Myanmar Center for Responsible Business MDRI Myanmar Development Resource Institute MEC Myanmar Economic Corporation MIC Myanmar Investment Commission MMK Myanmar kyat MOECAF Ministry of Environmental Conservation and Forestry MRLG Mekong Region Land Governance NCA Nationwide Ceasefire Agreement NEDA Neighboring Countries Economic Development Cooperation Agency NGO non-governmental organ­ization NLD National League for Democracy NLUP National Land Use Policy NMSP New Mon State Party NUCC National Unity Consultative Council

Abbreviations  xix

NUG OECD PLIC RCSS SDN SEZ SLORC SLRD SOE SPDC TNI UMEHL UMFCCI UNDP UNDRIP USDP UWSP VFV

National Unity Government Organisation for Economic Co-­operation and Development Parliamentary Land Investigation Commission Restoration Council of Shan State Specially Designated Nationals special economic zone State Law and Order Restoration Council Settlement and Land Rec­ords Department state-­owned enterprise State Peace and Development Council Transnational Institute Union of Myanmar Economic Holdings L ­ imited Union of Myanmar Federation of Chambers of Commerce and Industry United Nations Development Program United Nations Declaration on the Rights of Indigenous ­Peoples Union Solidarity and Development Party United Wa State Party vacant, fallow, virgin

Introduction

On November 7, 2010, as part of the seven-­step “road map to democracy” proposed in 2003 by the military government, Myanmar1 held its first general election in twenty years. The election before that was in 1990 when the opposition party led by Aung San Suu Kyi won by a landslide but was denied a transfer of power by the military’s State Law and Order Restoration Council (SLORC). The Myanmar military, also known as the Tatmadaw, had been in power in dif­fer­ent configurations since it carried out a coup in 1962 against the parliamentary government installed ­after the country’s in­de­pen­dence from ­Great Britain in 1948.2 ­After the 2010 election, the military engineered a transition3 to a multi-­party system according to the military’s 2003 road map to a “disciplined flourishing democracy,” which outlined the steps to the restoration of a parliamentary system. Despite many calling this a flawed election, the United States, Eu­rope, and other countries that had taken part in a US-­led sanctions policy since 1990 changed their stance to resume engagement with the country. On November 19, 2012, President Obama made a speech at the University of Yangon, where the historic 1988 student-­led movement for democracy had originated. In this speech, he said, “We w ­ ill extend a hand if you are willing to unclench your fist,” expressing a sentiment shared by Western leaders who regarded this partial transition with hope.4 Seven years l­ater, the country captured the attention of the world again, but this time the international gaze was not one of excitement, but of horror. On August 25, 2017, ­after Rohingya militants attacked more than thirty police posts in Rakhine State in western Myanmar bordering Bangladesh, the military initiated counteroffensives that led to the death of over nine thousand Rohingya ­people in the first month ­after the start of the vio­lence and the exodus of more than 647,000, out of a population of one million, in four months.5 The international community condemned the military for what was widely considered an ethnic cleansing campaign and Suu Kyi for her apparent lack of willingness to denounce t­ hese acts. To the international community, this set of events called into question Myanmar’s genuine commitment to democ­ratization. However, the mainstream portrayal of the country has not done justice to the many individuals who fought 1

2  Introduction

to make their country a freer place within the narrow po­liti­cal space opened by the new quasi-­civilian government, which was still largely controlled by the military. Thus, this book tells the story of how a highly fractured society that had lived for five de­cades u ­ nder authoritarian rule and isolation attempted to build a more inclusive, multi-­ethnic, demo­cratic nation in the de­cade from 2011 to 2020.

Centrality of Land in Myanmar’s Transition The partial transfer of power from the military to a quasi-­civilian government in 2011 certainly did not change the country from an authoritarian regime to a democracy overnight. The military built into the 2008 Constitution a set of institutional levers to control the direction and pace of the transition. Most prominently, the military maintained a fixed quota of 25  ­percent of parliamentary seats, while more than 75 ­percent of parliamentary votes ­were required to amend the Constitution. The military also held six out of eleven seats in the National Defense and Security Council, the highest decision-­making body for national security issues, and controlled the most power­ful ministries for defense, home affairs, and border affairs. However, in an attempt to gain legitimacy in the eyes of the international community, the Myanmar government undertook a series of domestic reforms and sought reconciliation with the opposition party headed by Suu Kyi. In July 2013, President Thein Sein gave a speech in London in which he set the tone for reforms to come. He declared, “We are aiming for nothing less than a transition from half a ­century of military rule and authoritarianism to democracy.” 6 Sanctions initiated by the United States ­after the 1990 election ­were gradually eased starting in May 2012, allowing the country to rejoin the global economy. The Myanmar government, with tacit agreement from the military, attempted ceasefires7 and negotiations over power sharing with numerous ethnic minority groups8 with which the former military state had been involved in armed conflict for more than six de­cades since 1948. On October 15, 2015, eight out of two dozen major ethnic armed organ­izations (EAOs) signed a Nationwide Ceasefire Agreement (NCA), ­after which high-­level dialogues ­were initiated with the stated aim to move ­towards the creation of a federal u ­ nion through constitutional reforms. In sum, the country undertook a three-­part transition ­toward democracy, peace, and open markets. Land is inextricably connected to each part of the country’s transition. According to the Asian Development Bank (ADB 2014), 67 ­percent of the rural population relied on land for their livelihoods in 2014. The transition created an opening for p ­ eople to demand reparations for the pervasive land confiscations that

Introduction  3

occurred u ­ nder the previous regime. The country’s ethnic minorities have fought for control over land, and its natu­ral resources, for the past seven de­cades. It is from the land, particularly the extractive industry, that the country’s economic elites have largely made their fortunes. Land has been an increasingly coveted asset in the era of the “global land rush,” referring to the intensification of capital’s pursuit of land since the global food price spikes in 2008–2009. The value assigned to land transformed the issue of who controls it into one of the most crucial issues during the country’s transition period. ­Because of land’s central place in Myanmar’s transition, a close examination of the country’s land politics contributes compelling insights about the country’s democ­ratization pro­cess. Si­mul­ta­neously, reflecting a bidirectional relationship between democ­ratization and land politics, democ­ratization concepts are valuable for explaining the complexity of land politics. ­Under this broad conceptual frame, the book seeks to contribute to an understanding of the role of land in political-­economic transitions, with a focus on the contentious and contradictory pro­cesses of demo­cratizing land. Land reform, which implies a (re)distribution of land to the landless and land-­ poor, has tended to accompany regime transitions into and out of dif­fer­ent po­ liti­cal systems in countries around the world (Lipton 2009). Taking the case of several East Asian countries, Studwell (2013) argues that land reform is pivotal to maximizing agricultural output, one of three key government interventions to facilitate economic development. Myanmar’s transition t­owards democracy required sweeping changes to land governance, although not land reform in the strict sense. A ­ fter sixty years operating u ­ nder the 1953 Land Nationalization Act, ­under which land was state property and leased out to farmers as tenants, Myanmar formalized a private property model with the passage of two new land laws in 2012. According to the director general of the Settlement and Land Rec­ords Department (SLRD)9 in office during the passage of the laws, the government had two goals: to provide land tenure security to farmers and to promote land-­based investment. Prioritized to a lesser degree, the Union Solidarity and Development Party (USDP) si­mul­ta­neously initiated a pro­cess of land restitution, the return of land or compensation to t­ hose who lost their land b ­ ecause of confiscation u ­ nder the military regime, while the National League for Democracy (NLD) government continued ­t hese efforts and initiated in 2017 a very modest initiative to distribute land to the landless. ­Because Myanmar’s reforms ­were not centered on land re­ distribution but dealt largely with a redefinition of property rights and a reor­ga­ ni­za­tion of land administration, the vari­ous land governance changes discussed in this book are more appropriately termed “land tenure reform.” The dynamics

4  Introduction

of contestation over land are generally referred to as “land politics” throughout the book. Taken together, the land tenure reform reflected two opposing tendencies. With the adoption of more neoliberal policies, one tendency furthered e­ arlier efforts initiated by the military government in 1988 to transform its centrally planned economy into a market economy. The other tendency facilitated the empowerment of civil society to demand justice for the ubiquitous land confiscation that occurred u ­ nder the military regime and the development of more demo­cratic institutions. Si­mul­ta­neously, the government initiated a national ceasefire pro­cess in 2011 in an effort to end over six de­cades of civil war with more than twenty major armed groups around the country. This development opened space for ethnic minorities to advocate for more inclusive land policies.

Research Methodology ­ ose who study the interaction between social movements and academics tend Th to agree that the division between ­t hese two camps is not clearly defined (Edelman 2009; Borras 2016). Despite the tensions that exist, scholars also point to potential synergies that can emerge from cooperation, such as when academics challenge a movement’s assumptions with new insights. While academics who adhere to positivist epistemology might say this blurring threatens academics’ ability to conduct sound research from a position of strong neutrality, Calhoun (2008) notes that t­ here is a history of scholarship with a strong activist bent, as academics have often been involved with social movements. In this vein, this book follows the tradition of critical realism, in which critique is part and parcel of the social sciences. Sayer (2000, 159) argues that t­ here is “no point in social science if it does not at least offer the possibility of some kind of social improvement.” The four steps in conducting critical social science research can be summarized as follows: 1. Identify prob­lems, such as unmet needs, suffering, or false beliefs. 2. Identify the sources or c­ auses of t­ hose unmet needs. 3. Negatively judge the sources of unmet needs. 4. ­Favor actions that remove t­ hose sources (Sayer 2000). Despite the existence of values, Sayer (2000, 58–60) maintains that we are still able to give balanced consideration to phenomena that we might judge to be negative, such as studying the negative impacts of patriarchy on w ­ omen’s health, just as

Introduction  5

phenomena that might be judged as positive can still be factual. He concludes that so long as care is taken to ensure values do not blind us from fairly assessing all information uncovered, value neutrality of one’s subjective views on a topic is not necessary to ensure objectivity in social science. Over the course of research, my roles in Burmese society ­were multiple: that of an academic affiliated with the International Institute of Social Studies in The Hague; as a visiting lecturer at the University of Yangon; as a professional attached to a British-­funded governance strengthening initiative, the Pyoe Pin Programme; ­later as an advisor for the multi-­donor Joint Peace Fund set up to support Myanmar’s peace pro­cess; and as an individual embedded in numerous social networks working in support of the country’s democ­ratization pro­cess. ­These roles at times created tensions. One key tension had to do with the fact that my employer organ­izations funded dif­fer­ent groups directly involved in land politics. This was largely advantageous to me in terms of my access to groups and pro­cesses that might have other­w ise remained elusive. On the other hand, being sensitive to the fact that my professional role could influence my environment, I tried to observe and facilitate, while limiting the expression of my opinions in public settings. In addition, t­ here was always the possibility that my professional role led key in­for­mants to tailor their responses in the hopes of accessing funding. Although it was not always pos­si­ble to separate my roles, I tried to send a clear message to key in­for­mants that their participation in my research was unrelated to funding. A second tension had to do with the fact that I sympathized with certain parties involved in highly politicized issues even as I sought to ensure academic integrity in my treatment of all information at my disposal. However, being fully forthcoming could mean revealing the weaknesses of ­these parties, which could harm their po­liti­cal positions. Thus, I sought to balance between articulating a full analy­sis of issues in line with academic vigor, while not harming specific parties with re­spect to ­these issues. Without compromising my findings, I discussed the most sensitive issues at a higher level and without personalizing findings. Despite the challenges, the networks of trust I created over the years facilitated my access to a range of ­people with vested interests in or deep understanding about the country’s land politics. ­These included government officers, ­lawyers, farmer networks, civil society leaders operating within the country and in exile, domestic and foreign businesspeople, academics, domestic and foreign journalists, and armed groups. In addition, my unique positionality allowed me to practice engaged scholarship. For example, in addressing prob­lems that arose from local communities, I disregarded critiques of the status quo that did not offer workable alternatives, while objectively and empirically assessing situations to

Myanmar with states and regions. From Jacques Bertrand, Alexandre Pelletier, and Ardeth Maung Thawnghmung. 2022. Winning by Pro­cess: The State and Neutralization of Ethnic Minorities in Myanmar. Ithaca, NY: Cornell University Press.

Introduction  7

arrive at feasible solutions. Thus, my roles as academic and practitioner complemented each other. To understand the role that land politics played in shaping Myanmar’s period of transition, I carried out research at national and sub-­national levels. Most of my time was spent in the city of Yangon, the capital of Naypyidaw, Ayeyarwady Region, Chin State, and Kayin State (more commonly referred to by its pre-1989 name “Karen State” by the Karen ethnic group).10 Over this time, I participated in land workshops; carried out extensive reviews of official archives, secondary research, media reports, and academic references; and conducted seventy-­five key in­for­mant interviews with policymakers, ethnic leaders, civil society leaders, private sector actors, academics, development prac­ti­ tion­ers, and local communities. All but nine w ­ ere Myanmar nationals. Interviews ­were carried out in En­glish, except for interviews with a few civil society leaders, which w ­ ere carried out in Burmese. ­These ­were done with the assistance of a translator and ­were recorded, and key excerpts ­were translated into En­glish. This study draws many empirical details from non governmental organ­ization (NGO) publications and local media reports published in En­glish but sometimes originally written in Burmese and translated. Though NGO publications often filter their research and analy­sis through an overt po­liti­cal stance, I analyzed their po­liti­cal arguments.

Key Dynamics Through my research, I identified two broad dynamics. The first is that despite the top-­down nature of the transition, land institutions became more demo­ cratic through the convergence of two pro­cesses: pacts between a reformist state and po­liti­c al elites, and pressure from grassroots mobilization. Together, they worked with the aim of undoing the legacy of undemo­cratic land institutions. The second dynamic is that across the country, the differences in outcomes in the contest over land ­were situated in the specific historic and po­liti­cal contexts of each region, despite being subject to the national-­level dynamics of the transition period. ­These two dynamics structure the rest of the book. The first half of the book sets the stage for how land politics unfolded at the national level considering the three-­part transition, while the second half delves into how land politics ­were expressed differently at the sub-­national level. In other words, this book does not treat a country’s land politics as a unified national outcome. New terms for engagement on the shaping of po­liti­cal institutions, including ­those governing land, ­were defined through pacts between state reformers and societal actors considered by the former to be useful to the reform pro­cess. From the ground up, mobilization involved dif­fer­ent co­a li­tions, ranging from farmer

8  Introduction

groups to ethnic civil society organ­izations (CSOs), which at times engaged with and at other times opposed policymakers. The effectiveness of ­these co­ali­tions was directly related to their capacity to unify across a range of positions. Among other gains, pacts and social mobilization led to the adoption of the progressive National Land Use Policy (NLUP) in 2016 and the cancellation or renegotiation of some highly unpop­u­lar large-­scale land investments. In this book, “progressive” land policies, laws, or reforms refer to t­ hose that protect the land rights of historically marginalized groups in the country, including smallholder farmers, ethnic minorities, displaced populations, and w ­ omen. To capture the heterogeneity within Myanmar, a country formed by in­de­pen­ dent ethnically distinct nations, some more loosely formed than others, I elaborate on case studies drawn from three regions: Ayeyarwady Region (commonly called “the Delta” and the Burman-­dominant lowland “rice bowl” of the country); Chin State (remote highlands where customary land institutions are the norm); and Kayin State (a significant part of which is still ­under the control of armed groups) (see ­table I.1). Linked to the three dimensions of the transition, the regions are characterized by the nature of the state-­society relationship (and the extent to which the state can be held accountable by society), the saliency of ethnic nationalism (to the extent that land claims are made based on ethnic claims to land), and the risk of land confiscations created by the market opening. Forming the second part of the book, with the argument developed further at the start of chapter 5, the three cases demonstrate how outcomes in contests over land are contingent on the specific historic, po­liti­cal, and geo­graph­i­cal contexts that characterize each region. Without comparing the relative success of outcomes in the regions, I explore the ways and degree to which state and societal actors interacted in their support or opposition to demo­cratic land institutions in each region. In the Delta, where t­ here was high pressure on the land, progressive land policies w ­ ere put into place as an outcome of alliances between state reformers and farmer leaders, as well as advocacy from an extensive network of civil society actors. In remote Chin State, pressure on the land was less pronounced but growing, and re­sis­tance to appropriation was led by po­liti­cal elites who worked within new channels opened by the peace pro­cess to protect customary land systems. This contributed to a more unified stance with regard to territory among an other­w ise disparate Chin community. In Kayin State, pressure on the land was high, and re­sis­tance against land confiscation also used the peace pro­cess as a platform. However, re­sis­tance centered on the long-­conflicted relationship between the government and the main armed group, the Karen ­National Union (KNU), which administers territory u ­ nder its control. Land confiscation was sometimes mitigated with the KNU’s involvement, but the cease-

Introduction  9 ­Table I.1.  Comparison of three regions in Myanmar Region

Description

Interaction of variables

Actors

Ayeyarwady Region

Burman-­dominant; country’s lowland “rice bowl”

State-­society relationship: strong Ethnic nationalism: low Risk from land rush: high

Numerous farmers associations networked with national civil society actors, including nongovernmental organ­izations, ­lawyers, and po­liti­cal parties; regular interaction with regional government

Chin State

Chin ethnicity; remote highlands characterized by customary land tenure systems

State-­society relationship: weak Ethnic nationalism: high Risk from land rush: low

Thin civil society presence, low po­liti­cal awareness among local communities; advocacy led by Chin po­liti­cal elites

Kayin State

Karen-dominant; significant part is still ­under the control of armed groups

State-­society relationship: fragmented Ethnic nationalism: high Risk from land rush: high

Moderate civil society presence; advocacy centered on negotiations between the armed group, the Karen National Union, and the government

fire also led to stronger state presence, resulting in more areas coming u ­ nder its administration. The book recognizes the challenges posed by economic elites who sought to maintain their positions despite a move t­ owards demo­cratic governance, as well as structural obstacles, such as the perversion of the l­egal system, that ­limited meaningful po­liti­cal participation in Myanmar’s nascent democracy. At the same time, given the state’s need to shore up po­liti­cal legitimacy, it was pos­si­ble to find openings for reform. Nevertheless, t­hese openings appeared differently across the country, and the state-­society interactions of par­tic­u­lar regions resulted in diverse outcomes. Th ­ ese findings tell us that a localized approach is needed to understand how democ­ratization pro­cesses unfold in countries with heterogeneous socie­ties. This book also provides a critical lens with which to comprehend the existing body of academic lit­er­a­ture on Myanmar’s land politics, which has gradually

10  Introduction

grown since 2012. By exploring the interaction of the demo­cratic transition, ethnic politics, and global capital pressures on land, and by illustrating the way ­these dynamics play out nationally, regionally, and locally, this book provides an overarching narrative that weaves together many of the dif­fer­ent facets covered by the lit­er­a­ture. One facet centers on the contestation over the shaping of new ­legal institutions, with a focus on the role of civil society in po­liti­cal engagement (Ra and Ju 2021; Suhardiman et al. 2019b; Mark 2016a). A second facet relates to the history of land confiscations in both lowlands and ethnic borderlands, as well as the possibility of restitution (Kramer 2021; Mark and Belton 2020; San Thein et al. 2018; Woods 2011). A third facet elaborates on the land tenure systems of dif­fer­ ent regions, with emphasis on customary tenure systems and practices that are distant from the purview of state law (Boutry et al. 2018; Huard 2020; Mark 2016b). A fourth facet views land as an arena of contestation for authority in areas u ­ nder the full or partial control of EAOs and other non-­state armed groups (Mark 2021; Suhardiman et al. 2019a; Hong 2017). A fifth facet investigates the po­liti­cal intersection between climate change and land, and the openings for agrarian climate justice (Borras et al. 2020; Sekine 2021). A sixth facet delves into the gender and generational dimensions of agrarian politics, particularly how they contribute to power differentials in rural social mobilization (Park 2021; Faxon 2020). All of ­t hese facets of the lit­er­a­ture except for the last two are brought together and analyzed in this book.

Situating Land in the Democ­ratization Pro­cess Revisiting democ­ratization concepts allows us to situate land politics in the broader pro­cess of transition. O’Donnell and Schmitter (2013, 6) say that while democracy cannot be defined by a single set of po­liti­cal institutions, citizenship is a central concept in democ­ratization that involves a pro­cess of redefining and extending rights “that protect both individuals and social groups from arbitrary or illegal acts committed by the state or third parties.” Democ­ratization involves the extension of citizenship rules to an expanded set of po­liti­cal institutions that might have previously been subject to less demo­cratic, traditional, coercive authority; to a more inclusive set of social groups; and to cover a broader array of issues. In such a po­liti­cal system, citizens have equal rights to participate in “the making of collective choices,” while t­ hose carry­ing out and enforcing t­ hese choices are expected to be equally accountable to all members of a polity (O’Donnell and Schmitter 2013, 7). Building on this definition of citizenship, I use the term “demo­cratic land institutions” to mean formal and informal laws, policies, and processes

Introduction  11

that protect ­people from illegal and arbitrary violations of their land rights, regardless of social structures such as class, ethnicity, gender, religion, and the like. ­Because democ­ratization is not a fixed state, but an evolving pro­cess subject to contestation that continually shifts the degree of and redefines the forms (such as rules, procedures, rights, and obligations) taken by a country’s democracy, “demo­cratic land institutions” also refers to the extent that citizens are able to participate in shaping t­ hose institutions, which in turn, equally apply to them. Yet, the extent to which it is pos­si­ble to build such institutions in the short to medium term can be severely l­ imited in nascent democracies. Peaceful transitions from authoritarian rule generally require reformers who push a regime to seek electoral legitimation by introducing freedoms to appease domestic opposition and international critics (O’Donnell and Schmitter 2013). In addition, scholars find that it has been more the norm than the exception that countries in transition are neither clearly dictatorial nor demo­cratic, but are in what Carothers (2002) calls a “po­liti­cal gray zone.” Based on her observation of transitions in Central Amer­i­ca, Karl (1995) calls ­t hese “hybrid regimes.” By this, she means countries in which civilian presidents are permitted, but the military still controls internal affairs and has the final po­liti­cal say; elections are ­f ree and fair, but par­t ic­u ­lar groups are disenfranchised or manipulated; and the judiciary tends to be weak, and rights are routinely ­v iolated. All ­t hese ele­ments ­were pre­sent in Myanmar in the past de­cade. Echoing the complexities articulated by hybrid regime theorists, Fox (1993) argues that agrarian reforms have often been slow to make gains ­after transitions to demo­cratic forms of governance. In such cases, land in par­tic­u ­lar becomes a focus of contestation not only ­because it is essential to individual and national wealth accumulation, but also b ­ ecause the way the rural majority perceives the management of land is crucial to a regime’s po­liti­cal legitimacy. Yet, it is often rural p ­ eople who are the last to see the payoffs from such transitions. Fox explains that the reason is that it is much more difficult for collective action to arise in rural settings due to ­factors characteristic of rural communities, including their lack of power and dispersed nature. He observes that in highly polarized socie­ ties, such as Brazil and the Philippines, the introduction of multi-­party elections led to highly volatile and violent outcomes for the rural poor, whose sheer numbers threatened po­liti­cal and economic elites’ hold on power. In ­t hese contexts, as in Myanmar, formal and informal po­liti­cal institutions can become vulnerable to the manipulation of economic and po­liti­cal elites, who may prevent rural populations from using the institutions to hold elites to account. Yet, over time, rural ­people may learn to employ new instruments that become available in nascent

12  Introduction

democracies, including election campaigns, alliances with urban civil society actors, and direct lobbying to the government—­strategies that ­were employed by Myanmar’s rural communities. In immature democracies in which po­liti­cal institutions still maintain many of the old characteristics of authoritarian regimes, the possibilities for social forces to achieve progressive reforms are rooted in a tension that is at the heart of the thesis put forth by state theorist Poulantzas. He says that the structures of the state come to reflect and become part of the class strug­gles that arise outside of it. Given ­t hese contestations, the cap­i­tal­ist state grapples with a critical issue: achieving the dual and often conflicting aims of supporting capital accumulation among the dominant classes, while ensuring po­liti­cal legitimacy among the dominated. While the state reflects and reproduces dominant ideology, at times it needs to rely on its “relative autonomy” (Poulantzas 1973, 143) in order to create an “unstable equilibrium of compromises” between the competing classes (Poulantzas 1978, 31). Thus, even though economic elites tend to use the apparatus of the state to secure their interests, state actors, wishing to strengthen po­liti­cal legitimacy, may distance themselves from ­t hese groups in order to enact policies that might be disadvantageous to them but broadly beneficial to every­one e­ lse. It was in this space that opportunities arose for dif­fer­ent social forces to utilize the openings found in Myanmar’s transition period to advance progressive land institutions through the state. This happened through the convergence of pacts between reformist po­liti­ cal and state elites, and pressure from grassroots mobilization. However, as the second part of this book w ­ ill show, t­hese dynamics often appeared differently across the country’s fourteen upland states and lowland regions. This variation has to do with what Chatterjee (2004, 38–39) argues in his examination of the politics of the governed in postcolonial states: t­ hese states have largely avoided fulfilling their obligations to guarantee the rights of citizens, and as a result few can claim to be rights-­bearing “full citizens.” Using India to demonstrate his point, he explains that “civil society,” populated by ­t hose who view themselves as citizens with a full set of rights, tends to be sparse in such settings. Since most ­people do not make claims to the state assuming themselves to be rights-­bearing citizens, they are left with the option of engaging in what Chatterjee calls “po­liti­cal society.” In this space, they mobilize to negotiate with the state through a range of strategies accompanied by threats and benefits (Chatterjee 2004, 3). Such demonstrations of collective action tend to be driven by dire conditions from which p ­ eople can find no easy escape, forcing them to break from their typically apo­liti­cal lives to enter po­liti­cal society. ­Because ­people’s po­liti­cal awareness is fluid—­t hat is, someone who may have been apo­liti­c al can become politicized and remain that way for a sustained

Introduction  13

period—it is not easy to make a clear-­cut distinction between “civil society” and “po­liti­cal society” among the numerous groups in Myanmar involved with or impacted by land politics. Nevertheless, Chatterjee’s concept is useful for understanding the heterogeneity among the states and regions that make up Myanmar. Since each has its own historic legacy, po­liti­cal dynamics, and sociocultural traits, civil society is very dif­fer­ent across the country. ­There is ­great variation in the way p ­ eople make demands of the state at dif­fer­ent levels and across dif­fer­ent parts of the country. This variation is influenced by a confluence of ­factors, including historic patterns that have s­ haped each region’s state-­citizen relationship, extent of isolation, and access to credible information. As the book seeks to contribute to an understanding of the role of land in political-­economic transitions, the next three sections provide the conceptual framing for the rest of the book by delving into the theories that help us to understand the significance of land politics in Myanmar’s three-­part transition ­towards democracy, peace, and open markets.

Role of Legitimacy in a Transition ­toward Democracy In 1988, a­ fter the SLORC military government a­ dopted a quasi-­market economy, it encouraged companies to take control of “unused land” ­under the 1991 Wastelands Instructions with the aim of promoting agro-­industry to boost a faltering economy. In real­ity, most of this land was e­ ither communal land or cultivated land that the government considered to be uninhabited land. While the government provided incentives such as import-­export licenses, the companies ­were responsible for providing inputs to increase land productivity. One such development proj­ect was led by Ayer Yar Shwe Wah, a com­pany belonging to the son of U Shwe Mann, who, at the time, was the commander of the Ayeyarwady Division. In 1999, the com­pany took control of tens of thousands of acres covering seventy village tracts. Fifteen years ­later, U Shwe Mann found himself occupying a civilian leadership role as the speaker of the Lower House ­under President Thein Sein’s administration. Irate with the stalemate in the land restitution pro­cess initiated by the administration in 2012, he urged more cooperation between the legislative and executive branches to quickly resolve the issues and to deflect criticism from the government: This ­matter can be solved smoothly and quickly if every­one worked together but since it is this way, it has become another prob­lem that draws criticisms u ­ nder the current government. The criticisms are not impor­tant

14  Introduction

but what is impor­tant is that our farmers are actually experiencing the difficulties. I would like to urge seriousness in tackling this issue.11 What happened in Myanmar to make a former military commander who was approving the confiscation of expansive tracts of land suddenly care about public opinion? To explain this, it is necessary to look at how legitimacy operated in Myanmar’s po­liti­cal culture over time. Legitimacy is closely related to the idea of hegemony. Gramsci (1971, 145) defines hegemony as the “consent given by the g­ reat masses of the population to the general direction imposed on social life by the dominant fundamental group,” which exists alongside the direct domination exercised by the state’s coercive power. It is along this spectrum between consent and coercion that the Myanmar state in transition could be located. Analysts tend to give heavier weight to f­actors internal rather than external to the country as d ­ rivers of the transition period (Egreteau 2014; Taylor 2013), and ­there is broad agreement that key catalysts ­were the low po­liti­cal legitimacy and economic decline of the military regime. The military needed to recover the legitimacy it had lost in the 1990s and 2000s, even in the eyes of its supporters (Ganesan 2013). This was clearly driven home with the 2007 Saffron Revolution, when the po­liti­cal opposition and members of the Buddhist order demonstrated against the regime. Burdened by the low growth rates of an economy controlled by a handful of business elites, as well as instability in the country’s borderlands from per­sis­tent civil war, regime reformers had reasons to liberalize the market and support a national peace pro­cess (Jones 2014). Gramsci (1971, 276) would have likely described the reasons b ­ ehind Myanmar’s top-­down transition as stemming from a “crisis of authority,” which could be addressed only “through a series of compromises or a force of arms.” Faced with ­t hese options, the military regime expanded the space for dialogue and compromise, although this space was still ­limited and controlled. This space was defined by po­liti­cal “pacts” between the former regime and interlocutors from vari­ous po­liti­cal opposition camps who negotiated with the former regime. A pact is defined as “an explicit . . . ​agreement among a select set of actors which seeks to define (or, better, to redefine) rules governing the exercise of power on the basis of mutual guarantees” (O’Donnell and Schmitter 2013, 42).12 ­Because pacts involve pro­cesses through which formal and informal rules of governance are set and reset, pacts by default necessitate the involvement of dif­fer­ent members of society with a high level of recognition and social influence. The role that pacts played in Myanmar’s transition period resulted in Suu Kyi’s release from ­house arrest in November  2010 and her subsequent return to formal politics.

Introduction  15

Egreteau (2016) notes that pacts required the involvement of intellectuals, dissidents, civil society leaders, politicians, ethnic leaders, and businesspeople, many of whom returned from exile to work with the old regime in setting up new po­liti­ cal institutions ­under the framework of the 2008 Constitution. The influence of pacts was more vis­i­ble in national-­level po­liti­cal spaces in Myanmar, but pacts also ­shaped land politics in sub-­national spaces. The return of exiled politicians, the release of po­liti­cal prisoners, and the passage of new laws facilitated the “resurrection of civil society” (O’Donnell and Schmitter 2013, 56). Diamond (1994, 5) defines civil society as the “realm of or­ ga­nized social life that is voluntary, self-­generating, (largely) self-­supporting, autonomous from the state, and bound by a l­ egal order or set of shared rules.” Local communities, in fact, may think it is in their best interest to operate “­under the radar” to avoid confrontation with state power. However, democ­ratization theorists generally assume that civil society plays a vital function in reinforcing the primacy of demo­cratic po­liti­cal institutions as mechanisms for checking state power (O’Donnell and Schmitter 2013). Institutions must be “surrounded by a sense of legitimacy” to be accepted, but when they are at odds with ­people’s interests, collective action might arise alongside a “realignment of interests, norms and power” to change t­ hese institutions (Nee and Swedberg 2005, 798). In Myanmar, the democ­ratization of land institutions became a focus of civil society, many of whose members w ­ ere watching the signals sent by high-­level policymakers. Statements such as the one uttered by U Shwe Mann in 2015, quoted ­earlier, emboldened civil society to take collective action in demanding the state de­moc­ra­tize land institutions to protect p ­ eople from arbitrary rights violations. In other words, ­people w ­ ere responding to po­liti­cal opportunities, which Tarrow (1998, 32) defines as “consistent—­but not necessarily formal, permanent, or national—­sets of clues that encourage p ­ eople to engage in contentious politics.” Drawing on Tilly’s 1978 groundbreaking work From Mobilization to Revolution, Tarrow’s (1998, 27) model of po­liti­cal opportunities emphasizes a set of conditions that directly impact on mobilization, especially opportunities or threats to participants and facilitation or repression by authorities. Weighing ­t hese ­factors, “­people engage in contentious politics when patterns of po­liti­cal opportunities and constraints change, and then by strategically employing a repertoire (dif­fer­ent forms) of collective action, creating new opportunities, which are used by o ­ thers in widening cycles of contention” (Tarrow 1998, 28), as well as in expanding “dense social networks” (Tarrow 1998, 16). Social movements require flexibility in the choice of tactics to be deployed as po­liti­cal opportunities shift (Borras et al. 2008). Thus, the repertoire of actions could range from the more mundane practices of voting and petitioning to more

16  Introduction

aggressive practices of striking, occupying, and inflicting harm on p ­ eople and property. In this way, movements often mix “official politics,” or state-­sanctioned channels of engagement, with “disruptive” or “extremist” tactics; ­t hese disruptive tactics can strengthen a movement’s influence in state-­sanctioned channels of engagement, resulting in official support for reforms that might have previously been seen as too radical (McAdam et al. 1996; also see Kerkvliet 2009). Given the mix of tactics employed by civil society, it is not uncommon to see civil society leaders play impor­tant roles in both pacts and grassroots mobilization. Civil society leaders may quietly orchestrate protests to pressure officials to open space for dialogue and compromise, and ­t hese leaders may be the same p ­ eople who are involved in pacts to rewrite the rules of governance On the other hand, the resurgence of civil society was not uniform across the country, leaving many subpopulations to operate on the margins of po­liti­cal society. As demonstrated by the three regional case studies, dif­fer­ent historical legacies and po­liti­cal opportunities e­ ither encouraged or stymied the growth of civil society, impacting the ability to create “dense social networks.” In the Delta, the growth of civil society was facilitated by f­ actors such as proximity to Yangon; the influx of aid ­after Cyclone Nargis in 2008; and the more routine interactions between state and citizens, who in this region w ­ ere predominantly Burman. The decades-­long conflicts and heavy military surveillance in the Karen areas of the country relegated in-­country Karen civil society to less overtly po­liti­cal roles, while ­those groups that openly criticized the regime ­were forced to operate on the Thai border. In Chin State, dispersed communities with low levels of po­liti­cal awareness in a mountainous terrain challenged the creation of a unified polity and therefore constituted a weak base upon which civil society could develop. In addition, the interests of regional authorities created dif­fer­ent po­liti­cal opportunities for civil society, while the unique geographies and natu­ral resource endowments of each region created varying pressures on the land. Th ­ ese three ­factors (pressures on the land, po­liti­cal opportunities, and civil society presence) influenced land politics outcomes in each region. Additionally, while social relations shape the state, states are not formless entities. As indicated by U Shwe Mann’s statement, state actors seek to proj­ect strong capacity (Migdal 1988) and autonomy, defined as the ability to “implement official goals, especially over the ­actual or potential opposition of power­f ul social groups” (Skocpol 1985, 9). But since state structures do not stand apart from societal influence (Mitchell 1991), they can be subject to capture by economic and po­liti­cal elites who seek to undermine the development of accountable institutions. Viewed this way, the book takes a “state-­in-­society” approach to understanding

Introduction  17

the state, in which the state is subject to contesting social forces, while also projecting concrete forms of functionality (Evans 1995). The transition years, in which state reformers sought to strengthen their legitimacy, witnessed a growth in po­liti­cal activism around land issues both in the official spaces opened by the government and in outside spaces. At times, this activism led to the formation of new state-­society pacts, such as t­hose pre­sent in the drafting of the progressive 2016 National Land Use Policy. For t­ hose who rejected engagement in ­favor of open opposition to the state, discontent was expressed through the informal, and much more confrontational, politics of social movements. ­These two approaches demonstrated fractures in civil society but also interacted to shape land institutions.

Transition ­toward Peace and Ethnic Territorial Claims ­ fter the 1962 coup, General Ne Win declared that “the most impor­tant reason” A for the coup was to avoid the “chaos” that a federal ­union, demanded by ethnic minority leaders, would have resulted in (Smith 1999, 169). Upon seizing power, the military declared the “three main national ­causes” as “non-­disintegration of the Union, non-­disintegration of national solidarity and perpetuation of sovereignty” (Maung Aung Myoe 2018, 40). In 2014, President Thein Sein reversed the messaging on federalism for the first time in his monthly radio address to the u ­ nion. He said, “A firm po­liti­cal agreement on forming a federal u ­ nion, which is vital to the peace pro­cess, has been reached.”13 His statement revealed the quasi-­civilian government’s focus on peace building a­ fter six de­cades of civil war in an effort to unify the country, to strengthen the central state’s sovereignty, and to create more optimal conditions for economic development. The concept of sovereignty is conventionally understood across dif­fer­ent fields as “unlimited and indivisible rule by a state over a territory and the p ­ eople in it,” but critical scholarship points to the importance of distinguishing between de jure and de facto, or effective, sovereignty (Agnew 2005, 437). Agnew (2009, 3) defines the latter as the “extension and institutionalization of control and authority within a spatial field.” When the state is challenged by non-­state actors in ­either or both ­t hese dimensions, its sovereignty is fragmented. A study carried out by Jolliffe (2015) about dual administration ­under both government and armed groups in conflict-­affected areas concludes that, “in many areas, ethnic armed actors have much deeper relations with local communities than the state and, in numerous cases, have been the only authorities to administer

18  Introduction

their regions in the country’s 67-­year history.” Although EAOs increasingly lost territory to the government a­ fter progressive military losses through the years, several of the larger armed groups, including the Karen National Union, the United Wa State Party (UWSP), and the Kachin In­de­pen­dence Organ­ization (KIO), continue to maintain control of and administer territory. Th ­ ese groups have established governance structures that carry out the typical functions of government, such as providing basic ser­vices, collecting taxes, and regulating investments. The state’s fragmented sovereignty is inextricably linked to its ethnic politics, which Taylor calls “the obverse of the politics of national unity in modern Burma” (1982, 7).14 ­Towards the end of British rule, groups including the Shan, the Karen, the Karenni, the Chin, and the Kachin aspired to return to the levels of autonomy they had enjoyed prior to colonial rule. Martin Smith notes that, ­after in­de­pen­dence, “it was more on the basis of city-­states than of a nation that any po­liti­cal structure was to develop” (1999, 32). General Aung San, who would have taken the helm and run the country if he had not been assassinated six months before the country’s in­de­pen­dence in 1948, held out promises of greater autonomy to ­t hese ethnic minorities in the 1947 Panglong Agreement. General Aung San offered the Shan, Chin, and Kachin greater autonomy in exchange for their ac­cep­tance of a more integrated Union of Burma. On the premise that this autonomy could further dissolve the new ­union, the military staged a coup in 1962. Soon ­after, the military enforced policies that sought to centralize control over ethnic minority territories, while perpetuating a Burman-­centric culture (Walton 2012b). Since the late 1980s, a­ fter the first round of ceasefires (1989–1995), the military government intensified its accumulation of land holdings through a policy that facilitated domestic economic elites’ access to resource-­rich ethnic minority areas, while co-­opting many EAO leaders with material rewards in the pro­cess (Woods 2011). In her study of indigenous peasant movements in Ec­ua­dor, Bolivia, and Peru, Yashar concludes that the po­liti­cal strength of indigenous communities was challenged by evolving citizenship regimes “in the context of an incomplete (and at times contradictory) pro­cess of democ­ratization and state reform” (2005, 29). This led to a failure of the state to fulfill its contract to ensure the same rights for all citizens. Something similar occurred in Myanmar’s transition period, during which the state persisted in denying ethnic minority groups full participation in decision-­making over key social, po­liti­cal, and economic issues, such as the extent to which they would control their territory and the natu­ral resources in it. An incomplete and contradictory democ­ratization pro­cess also saw the exclusion of ­people born in Myanmar but not considered to be taingyintha, or one of the eight official national races—­namely, Burman, Shan, Kachin, Chin, Karen,

Introduction  19

Karenni, Arakan, and Mon. As Cheesman (2017, 461) argues, the po­liti­cally loaded term taingyintha has been conflated with the state’s “juridical proj­ect to dominate some p ­ eople and elide o ­ thers through a citizenship regime in which membership in a national race has surpassed other conditions for membership in the po­liti­cal community ‘Myanmar.’ ” He explains that this term became fully institutionalized during the military regime when the concept was used to urge reunification between the Burman and other national races. Consequentially, the citizenship rights of t­ hose excluded from this concept are weaker, such as t­ hose with Chinese ethnicity, who have partial citizenship,15 or the Rohingya, who have no citizenship. ­These groups have not been able to advocate for their rights through the national peace pro­cess, predicated on the history of civil war between groups that, according to official history, w ­ ere native to the land prior to the country’s in­de­pen­dence. Thus, this book limits its consideration of the ethnic politics of land control to the ethnic groups that are officially recognized as the national races but that, nevertheless, have not enjoyed equal rights in the de­cades since the country’s in­de­pen­dence.16 Another key dimension of ethnic politics relates to the way it is mobilized and expressed. Understanding this requires employing the constructivist concepts of the nation advanced by writers in the 1980s and 1990s. Gellner (1983), in Nations and Nationalism, conceives the nation as a social construct in­ven­ted and perpetuated by elites to promote cultural homogenization as part of a society’s modernization pro­cess. Deviating from Gellner’s emphasis on the nation as an invention by elites, Anderson (1991) puts forth the idea that a nation is an “­imagined po­liti­ cal community” among a group of p ­ eople. To him, the nation is l­ imited ­because it has “finite, if elastic, bound­a ries”; sovereign ­because “nations dream of being ­free . . . ​[and the] gage and emblem of this freedom is the sovereign state”; and a community, “­because, regardless of the a­ ctual in­equality and exploitation that may prevail in each, the nation is always conceived as a deep, horizontal comradeship. Ultimately it is this fraternity that makes it pos­si­ble, over the past two centuries, for so many millions of p ­ eople, not so much to kill, as willingly to die for such ­limited imaginings” (Anderson 1991, 5–7). Further, Anthony Smith (1988), in The Ethnic Origins of Nations, posits that nation building necessitates the creation and reinforcement of ethnicity. Echoing the malleable nature of ethnicity, South (2008, 4) says that “categories of identity have been constructed, and re-­made, by the forces of history, as well as the manipulation of elites” in Myanmar. As will be further unpacked in chapter 3, by applying the concepts of nation and ethnicity to the understanding of land politics in Myanmar, this book illustrates how the strug­gles over land among ethnic minority groups reveal their under­lying conception of themselves as separate

20  Introduction

nations exerting sovereign rights over territory. As argued by Steinberg a­ fter the 2021 coup, more than even the challenge of state building, the absence of a shared and united Myanmar identity, despite inept efforts by successive governments to remedy it, has been the single greatest challenge to the construction of the modern nation of Myanmar.17 Beyond this, ­t here are additional complications of how ethnic subgroups are defined within each one of Myanmar’s eight major ethnic groups. Compared to the concept of indigeneity, which conjures up a sense of backwardness for many of Myanmar’s ethnic groups, the concept of nationhood connotes a sense of equal standing to the Burman majority, with whom t­ hese ethnic groups created a multinational state called the Union of Burma postin­de­pen­dence. In contrast, ethnic groups that have more difficulty in making this claim and that do not control an entire state or region in their name—­for example, the Naga, as opposed to the Shan—­may have more reason to use the indigeneity discourse. Another point of contention among ethnic actors in their strug­gle over land was related to their divergent po­liti­cal strategies with regard to the government and military. Th ­ ese differences could be seen among armed ethnic actors and between armed and unarmed ethnic actors. Among EAOs, less than half of the groups chose to engage in negotiations u ­ nder the 2015 Nationwide Ceasefire Agreement, while the remainder, distrustful of what they perceived to be a military-­led peace pro­cess, continued the armed strug­gle. In fact, while the post-­ NCA period was supposed to see a reduction in armed conflict, the military during this time built up its high-­tech surveillance system and weaponry to enhance its combat capabilities, which ­were ruthlessly deployed in the ethnic cleansing campaign against the Rohingya in 2017 and ­later used against civilians who opposed the military ­after the coup in 2021. For ­t hose who chose to partake in the peace pro­cess, t­ here was a notable difference in the ways that EAOs and ethnic CSOs engaged. While EAOs generally preferred to focus their efforts on the longer-­term goal of realizing a federal ­union, many ethnic CSOs engaged with the government’s gradual legislative reforms with the aim of securing statutory recognition for ethnic land rights. Disagreement over framing and strategy challenged alliance building among ethnic actors. As part of the state’s attempt to strengthen legitimacy among its citizens, and even though EAOs do not fully represent their respective ethnic groups, the government extended an olive branch to ethnic minorities by agreeing, in princi­ple, to move the country t­owards federalism. This encouraged ethnic armed and unarmed actors to participate in the peace pro­cess. At the national level, this paved the way for an extended dialogue about how ethnic minority rights, in-

Introduction  21

cluding ­those to ancestral territory, should be guaranteed ­under the institutions of an envisioned federal demo­cratic u ­ nion. Civil society utilized the po­liti­cal space created by the peace pro­cess to challenge threats to their land. Given the unique sociohistorical context of each region, t­here w ­ ere vastly dif­fer­ent outcomes in the contest over land across the country.

Market Opening and the Global Land Rush President Thein Sein in 2013 described the transition to open markets as “moving from a state-­centered and isolated economy to one that is based on free-­market princi­ples and is integrated into world markets.”18 With the increasing value of land globally, and a perception of Myanmar as Asia’s last frontier, the country’s market opening meant that it was also forced to confront the global “land rush,”19 a term that appeared at the time of the food price spikes in 2008–2009 to refer to a marked intensification in the search by transnational capital of low-­cost land to fuel cycles of accumulation (Cotula 2012). Analy­sis of the land rush dynamic ­were largely informed by Harvey’s (2003) conceptualization of capital “accumulation by dispossession” (of ­people from their land) in The New Imperialism. Civil society actors and local communities ­were fully aware of this threat as they wielded signboards with the slogan “land not for sale” at public demonstrations against infrastructural proj­ects considered to be detrimental to communities and the environment. White et al. (2012) attribute this phenomenon to ­factors including (1) the fear of food insecurity, which prompts investments in food and livestock feed; (2) the rise and volatility of commodity prices and as a subset of that, fuel prices, leading to new policies such as ­t hose that promote biofuels (Borras et al. 2010); (3) new environmental imperatives that prioritize land for conservation; (4) the establishment of infrastructural corridors that prioritize industrial over agrarian use of land; and (5) the financialization of land, through which land becomes part of asset portfolios that are traded like stocks and bonds (Fairbairn 2014). The d ­ rivers of the global land rush in Myanmar had been playing out in several ways in the country and globally, including acquisitions of land for (1) contentious special economic zones, industrial zones, and resort areas; (2) “boom crops,” such as oil palm or rubber (Hall et al. 2011); and (3) extractive industries such as gas, mining, and hydropower. In fact, power, oil and gas, and mining made up the top three sectors in terms of monetary value from fiscal year (FY) 2000 to FY 2011, totaling 98.1 ­percent of all approved investments (Bissinger 2012). The conversion of land for agro-­industry had already been on the rise since 1991, when

22  Introduction

the Myanmar government allocated land ­under the 1991 Wasteland Instructions for the cultivation of cash crops. ­These investments involved military conglomerates, individual members of the military, and crony businesses with close ties to the regime, many in joint ventures with Chinese and Thai investors. During the transition period, economic elites that benefited ­under the military regime’s “state-­mediated capitalism,” characterized by a “symbiosis between big business and the state” (Jones 2014, 145), continued to do so if they maintained close connections to the military. Even though poverty indices show a significant drop in the percentage of the population living below the national poverty line in the de­cade before the coup,20 some scholars argue that the transition period did not fundamentally change an exploitative cap­i­tal­ist system, and in hindsight, did not significantly improve living standards for the poorest. Prasse-­Freeman and Phyo Win Latt (2017) point to several structural ­factors that kept the poorest mired in poverty, including the continued reliance on a resource-­extractive growth model, agrarian displacement, an undeveloped ­labor market to absorb low-­skilled rural mi­grants, and insufficient safety nets. In turn, ­t hese ­factors force the dispossessed into mortally risky forms of ­labor exploitation (Prasse-­Freeman 2021). Campbell (2022) argues that international actors operating in Myanmar legitimized a development agenda built on the values of efficiency and economic growth that pushed rural ­people into precarious economic arrangements in urban areas. However, that analy­sis does not tell the complete picture of the economic changes that accompanied the country’s market opening. Extensive lit­er­a­ture discusses the harmful impacts that transnational capital can have on countries in the early stages of integration into the global cap­i­tal­ist order, as they open their borders before putting in place strong regulatory standards. In the case of Myanmar’s autarkic economy, which had faced a series of shocks ­u nder previous regimes, state reformers w ­ ere e­ ager to lift the country’s low bar in economic governance. Distinguishing this period from ­those preceding it, the return of diversified transnational capital actors, including corporations and international financial institutions, exposed Myanmar to new transnational forces and relationships of production that, even if not power­ful enough to restructure the country’s cap­i­tal­ ist system, introduced new norms to it. A subset of transnational cap­i­tal­ist actors shared and promoted new corporate standards, including clear and consistent investment regulations; strong private property laws; and, often, a policy of corporate social responsibility. Th ­ ese standards w ­ ere at odds with t­hose that guided investments u ­ nder the previous regime. Bieler and Morton (2014, 41) argue that when t­ here are “antagonisms between dif­fer­ent fractions of . . . ​capital,” the state may seek to mediate between them, and this “may involve a decision against the interests of a par­tic­u ­lar fraction in view

Introduction  23

of securing cap­i­tal­ist reproduction in the medium-­to long-­term.” In other words, state actors who prioritize the preservation of a well-­f unctioning cap­i­tal­ist system in the long term may want stronger regulations that put ­t hose who do not adhere to them at a disadvantage. Post-2010, Myanmar state reformers who wanted to attract a wider pool of capital and diversify from existing monopolies that they believed ­limited the country’s potential for advancement ­were ­eager to demonstrate the government’s commitment to economic reform. However, due to the weakness of the Myanmar state, t­ hese public declarations w ­ ere usually not followed by effective enforcement. Nevertheless, the official declarations fueled civil society movements that deployed them to pressure state reformers to hold economic elites to account. The transition to open markets also involved pacts. The Thein Sein government sought to shift the country t­ owards better regulated forms of capitalism by inviting self-­exiled Myanmar technocrats to return and assist in the development of new institutions. Prominent among them was the nongovernmental Myanmar Development Resource Institute (MDRI), which was founded in 2012 and staffed by self-­exiled scholars who had been educated in the West. Institutions like t­ hese ­were the preferred partners of technocratic assistance from the likes of the World Bank and the Asian Development Bank. Alongside this pro­cess of market liberalization was a pro­cess of po­liti­cal liberalization that at times mitigated blatant forms of coercive authority. This was accompanied by vari­ous social movements around the country that placed pressure on the new quasi-­civilian government to make amends to communities that had long suffered ­under repressive policies. Given ­t hese combined pressures, the Myanmar state took steps to move away from personalized and unaccountable rules that characterized an ­earlier era of investments. New rules demanded that investors pay attention to the environmental and social impacts of their proj­ects, such as the involuntary resettlements of local populations. The transition years showed that state reformers, responding to pressures exerted on them by civil society and incentives for engagement with a more diversified pool of capital, pushed for the adoption of higher investment standards. While this mitigated some of the worst excesses of land-­based capital accumulation, military and economic elites, many of whom occupied official policymaking positions, ­were ­adept at undermining ­t hese fragile new institutions.

Tensions in the Transition The transition pro­cess that was initiated in Myanmar in 2010 was highly ambitious in terms of its scope and complexity. It was thrilling for many of the Myanmar

24  Introduction

­ eople who had been waiting for de­cades for this transition, as well as for the rush p of p ­ eople who came to the country, including diplomats, development workers, journalists, and social scientists. But anyone who tried to engage with the new government soon realized that such a massive undertaking was too much for the fledgling quasi-­civilian government. Bureaucrats who w ­ ere accustomed to taking ­orders within the rank-­and-­file system of the military suddenly had to learn how to run the government ­under new rules. Government capacity was pushed to the limit as it tried to manage numerous reforms in the transition period. Unsurprisingly, the government’s prioritization of economic growth often came in conflict with its articulated priorities for restituting land to indigent farmers or to work t­owards sustainable peace with the country’s numerous ethnic minority groups. Given Myanmar’s image as Asia’s last frontier, with plentiful undeveloped land, the investments following the country’s market opening naturally gravitated ­towards this resource. Even as civil society was trying to undo the legacy of land confiscation and extractive large-­scale investments, they ­were si­mul­ta­neously facing the threats of new waves of the same. In ethnic minority areas, ceasefires ­were both a blessing and a curse, as new investors rushed into areas no longer plagued by armed conflict to exploit rich natu­ral resources. The early years of the transition presented new openings for civil society to engage in politics, but the environment also became much more complex, with new actors trying to influence the policymaking pro­cess. In this book, civil society actors, reformist state actors, aid actors, and a segment of international investors concerned with corporate accountability are generally considered as “progressive forces,” while the military, economic elites favored by the military, and conservation state actors are considered as “regressive forces.” However, this is not always a clear binary, as individual or subsets of actors in each bloc may act in ways that create obstacles for o ­ thers in the same bloc. For example, simultaneous reforms initiated on multiple fronts created rifts among dif­fer­ent segments of civil society. Within the space of land politics, ­people ­were often affiliated by class, ethnicity, or gender, and ­these classifications did not always converge. Farmer groups that claimed to represent the base found it difficult to also speak convincingly to their ethnic minority members about the ethnic strug­gle or to speak inclusively of ­women’s concerns. Likewise, pro-­reform civil society actors ­were split between ­those who opted for engagement with and ­those who chose opposition to the quasi-­civilian government. In addition, the pace at which reformist state actors advanced reforms tended to be much slower, and sometimes at odds, with that of most civil society actors, preventing ­these alliances from consolidating. Considering the openings and the frictions inherent to this period in Myanmar’s

Introduction  25

history, this book sets out to demonstrate the complexity and contradictions of the country’s transition years through its land politics.

Chapter Outline The book is divided into two parts. The first part of the book (chapters 1–4) considers the complexity and broad scope of Myanmar’s transition by addressing how land contests played out in each of the three parts of the transition, while making references to the other two concomitant parts. The second part of the book (chapters 5–7) uses three sub-­national case studies to illustrate how the interconnected dynamics of the three-­part transition w ­ ere expressed differently across the country. Chapter 1 (The Context for Land Tenure Reform) first gives a historical overview of how land governance evolved since the colonial era, through the socialist, military, and recent quasi-­democratic regimes. The chapter explains how this history resulted in a “stacked” ­legal framework, in which multiple layers of laws exist si­mul­ta­neously, a situation worsened by severe capacity gaps. The chapter also discusses how economic and po­liti­cal elites ­were able to exploit this situation to maintain structural hierarchies. Chapter 2 (The State’s Quest for Legitimacy Opens Space) considers the ways in which the state, in its early transition years, sought to strengthen its legitimacy by opening space for po­liti­cal participation at the national level. The chapter takes a brief look at the history of authority in Myanmar before discussing how p ­ eople’s po­ liti­cal consciousness was ­shaped by the democ­ratization pro­cess. Focusing on the National Land Use Policy and land restitution efforts, the chapter looks at the way state and societal reformers engaged in official politics, at times forming pacts, to make incremental advances ­towards progressive land institutions. The chapter considers how grassroots mobilization s­ haped national politics, before ending with a discussion of the aggregate impact of pacts and grassroots movements. Chapter 3 (The Ethnic Politics of Land) examines the way ethnic politics ­shaped the debates over land. The chapter first situates ethnic politics of land in the country’s historical strug­g le to establish a federal ­u nion. The chapter then highlights the developments around the 2015 Nationwide Ceasefire Agreement and how that created a platform for ethnic minorities to articulate more inclusive land institutions. Next, the chapter elaborates on the strategies and discourses used by ethnic armed and non-­armed actors to advance this agenda. Chapter 4 (New Market Incentives Shape Norms) describes how institutions governing land-­based investments changed in the transition years, and the extent

26  Introduction

to which ­these institutions ­were effective in regulating capital. The chapter elaborates on the reasons state reformers started to take a more active role in investment regulation and, in response, how dominant forms of capital adjusted their investment be­hav­iors in the new regulatory context, including the military, Chinese investors, and “crony companies.” The chapter also considers the challenges to t­ hese reform efforts, namely the limits of autonomy and capacity within the state. Chapter 5 (Ayeyarwady Region: State-­Citizen Negotiations) elaborates on how land tenure reform unfolded in the Delta. This chapter starts with a historical overview of the region and then examines the interaction between po­liti­cal opportunities and dense networks of civil society actors, especially farmer ­unions, to explain the way rural social movements developed in the last de­cade. Despite a diversity of actors and strategies that ­limited coordination, alliances between state reformers and farmer leaders, as well as advocacy from an extensive network of civil society actors, resulted in incremental gains for communities. Chapter 6 (Chin State: Between State and Customary Institutions) looks at how land politics unfolded in an area where customary and statutory institutions are both active. The chapter starts with a historical overview of the Chin, with a focus on f­ actors that weakened the creation of a unified po­liti­cal community. The chapter then describes customary land tenure systems in Chin State and the threats posed by the market opening post-2010. Next, the chapter discusses how the lack of po­liti­cal opportunities in Chin State, together with its distance from the state and a weak civil society presence, resulted in Chin po­liti­cal elites taking a leading role in land politics. Chapter 7 (Kayin State or Kawthoolei: Dual Administration) discusses the po­ liti­cal complexities of dual administration of land by both the government and the Karen National Union. This chapter first provides a historical sketch, including a discussion of how the KNU established its parallel administration. Next, the chapter considers the tensions between the two land administrations and the extent of land confiscation in the ceasefire context. The chapter then looks at the central negotiating role of the KNU, alongside the strategies employed by communities and their allies to mitigate the impacts of land confiscation. By drawing on a close study of Myanmar, the conclusion discusses the theoretical takeaways, which may be useful for studying other countries engaged in reforming land institutions during political-­economic transitions, particularly ­t hose moving ­towards democracy. The book ends with a reflection on the turbulent events that unfolded in the country since the conclusion of the book’s research, with a focus on the military coup that occurred on February 1, 2021.

C HA P T E R ON E

The Context for Land Tenure Reform

A land confiscation case in Tanintharyi Region in southern Myanmar started in 2013. It involved 189 farmers from three villages who not only lost their land to a moneylender but w ­ ere also charged with trespassing on this same land. Per the contract signed between the moneylender and the farmers, they would not have to pay interest on the loan but had to give the moneylender general powers to change land owner­ship by amending their Form 105 (a simplified map of their land parcels, which served as a land certificate). Many farmers signed without understanding the contracts. The moneylender involved also negotiated for permission from Karen National Union (KNU) authorities in this area. The l­awyer for the farmers explained to me how he navigated the po­liti­cal system in his quest for justice: I have been threatened in many ways. I was shot at for meeting with farmers. The GAD [General Administration Department] tried to put me in jail. The judge tried to sentence me for not obeying court. But I have friends in the President’s office. . . . ​­Because of work on trafficking, I also made friends with military intelligence who tipped me off to avoid assassination. I am moving in a black region where t­ here is no rule of law. In Naypyidaw, I advocated the Supreme Court to dismiss three judges for mistreating me and the farmers with no evidence. We got the GAD transferred and dismissed for supporting a moneylending com­pany that operates with no license. . . . ​ If we depend on the court, we w ­ ill never win any cases. We must negotiate on all levels with the GAD, the chief minister, Parliament, companies. . . . ​ The opposition ­will only negotiate if they see it is in their interest. . . . The chief minister was also very supportive, but he could not control the GAD. Eventually, I got the Parliament speaker to form a committee to investigate the case. I said, “If you want to be known to farmers as a justice lover, you can balance the power of the GAD officials.” He has a good reputation for his involvement. I also gave him solutions, and he used t­ hese. . . . I have to find many friends to help me. I ­can’t implement the laws, so I have to find ­t hose who can implement them. How can I find ­t hose who ­w ill accept my ideas? They know the laws and I know the laws, but I push 27

28  Chapter 1

them to implement them. I document with video, photos, and facts. I say “please suggest to me what to do.” I d ­ on’t command them. I have such strong arguments that they cannot ignore me.1 This case demonstrates how a l­awyer had to use po­liti­cal dexterity to engage with power brokers in order to mitigate the tendency for courts in Myanmar to issue rulings in f­ avor of elites in land dispute cases. Unfortunately, this was not a rare case, but symptomatic of structural ­factors that challenged the democ­ ratization of land institutions. ­These ­factors included a hierarchical social order abetted by an incoherent ­legal framework, a result of ­legal regimes that evolved through the colonial, socialist, military, and demo­cratic periods. The complexity of such a l­ egal framework was worsened by severe gaps in administrative capacity. The situation not only led to conflicts within communities that started to engage with the new laws passed by the government to formalize private property, but was also exploited by elites to maintain traditional power structures, facilitated by a ­legal system that tended to mete out “justice” in accordance with status. In hindsight, while ­these changes provided increased security for many rural ­house­holds, particularly in the lowlands, they also raised insecurity for many o ­ thers. This chapter elaborates the context in which land tenure reform occurred in the transition period. The chapter starts off with a description of a complex ­legal framework that evolved since colonial rule, before describing the land tenure reform initiated in 2012. The chapter then discusses the ­legal culture in which the legislative reform occurred to show the breadth of impediments that stood in the way of progressive reform.

“Stacked Laws” over Four Regimes Drawing from Benda-­Beckmann’s concept of l­egal pluralism, Roquas (2002) coined the term “stacked laws” to describe the property regimes she observed in Honduras. She extends the idea of ­legal pluralism by adding that pluralism within a ­legal framework can also be caused by (1) dif­fer­ent laws being created over time, which come to exist si­mul­ta­neously despite contradictions between them; and (2) variations in the way that state officials implement and enforce laws and policies, variations that often become normalized over time. In her conceptualization of stacked laws, instead of e­ arlier laws being replaced by l­ater ones, or multiple laws merging into a fluid comprehensive ­legal framework, ­legal frameworks come to have layers of dif­fer­ent ele­ments, which ­people tease out and strategically employ. By d ­ oing so, individuals and communities establish the validity of their claims to land based not only on current active laws, but also by invoking

Land Tenure Reform   29

their understanding of older laws and policies that may no longer be legally valid—leading to dif­fer­ent interpretations of land rights between farmers themselves, and between farmers, officials, and investors. The concept of stacked laws is helpful in explaining Myanmar’s l­egal framework, which evolved over four regimes, starting in 1876 when the Lower Burma Land and Revenue Act was passed (Mark 2016a). Over this time, new laws, executive ­orders, and policies ­were layered onto older laws, often without replacing or revoking them. This created a highly disjointed ­legal framework. Even before the addition of the two most recent land laws in 2012, Leckie and Simperingham (2009, 17) identified seventy-­t hree active laws and regulations related to housing, land, and property rights. Adding to this disjointedness, officials w ­ ere often acquiescent to practices that ­were not permitted by state law, but which eventually became quasi-­official b ­ ecause they ­were commonly practiced. A good example is the semilegal land market that developed in response to restrictions on the buying and selling of land imposed by the 1953 Land Nationalization Act, in which farmer tenants “sold” their plots to one another using store-­bought contracts in the presence of the village administrator, who also took part in changing the owner­ship information in the local land registry (Boutry and Allaverdian 2017, 108). Contributing to the pluralism of state law was the existence of dif­fer­ent sets of customary laws enforced by tribal bodies (described in chapters 3 and 6) and laws enforced by ethnic armed organ­izations (described in chapter 7) that governed land use and owner­ship in ethnic minority communities across the country. Having too many laws challenged effective law enforcement as officers strug­ gled to determine what laws applied when and how to operationalize them on the ground, especially ­after the introduction of the 2012 land laws. This situation was often manipulated by t­ hose who wanted to maintain their control of resources and facilitated by the payment of informal fees to officials to selectively ignore some aspects of the laws, resulting in an inconsistent application of the law. In contrast, smallholder cultivators who ­were not able to afford ­these fees ­were often challenged with having to navigate the complexity of the laws, which became barriers to rather than guarantees of t­ hese smallholders’ land tenure. The current system of land governance in Myanmar is very much influenced by the system put into place during the colonial era (1824–1948). ­Great Britain, ­after it seized control of what it called Lower Burma in 1852, used locally cultivated rice to feed not only its own industrial workers, but also plantation workers across its global empire (Wolf 1982). Due to the need to rationalize the rice and taxes extracted from Burmese farmers, the British introduced a system to assess individual land holdings (Furnivall 1991 [1939]), via the passage of the 1876 Lower Burma Land and Revenue Act. This law imported the British system of property

30  Chapter 1

rights and granted rights to inherit and trade land a­ fter a farmer had used the land for twelve consecutive years. As the precursor to cadastral maps, the British introduced a scheme in which “the land of e­ very cultivator was to be mea­sured up, and he was to receive a statement showing that he possessed so many fields and so much garden land” (Furnivall 1991 [1939], 124). The Settlement and Land Rec­ords Department (SLRD), formed in 1906, administered the tax collection system by issuing receipts for taxes collected on cultivated plots included in cadastral maps. Tax receipts had the following information: territorial division marked by a rough sketch of a plot within neighboring plots (kwin), the unique number of that par­tic­u­lar plot, the size and kind of land, the village and village tract names, and the cultivator’s name (Boutry and Allaverdian 2017, 133). Another impor­tant law enacted by the British was the 1894 Land Acquisition Act, which provided the basis for compensation when land was acquired by the state for itself or a private developer for proj­ects with a “public purpose.” Post-2010, this law served as the basis for decision-­making about w ­ hether communities had a retroactive claim to compensation for confiscations that occurred u ­ nder the military regime, the only law regulating acquisitions at the time. The British, however, treated land in ethnic highland areas differently. ­Unless laws applicable to Lower Burma w ­ ere specifically extended to what w ­ ere called “Scheduled Areas,” indirect rule was practiced and customary laws were applied, including the 1895 Kachin Hill Tribes Act and the 1896 Chin Hills Regulation (FSWG 2011). ­After in­de­pen­dence, the 1947 Constitution of the in­de­pen­dent Union of Burma established the state as the ultimate owner of all natu­ral resources and land, a provision that was reaffirmed in the 1974 and 2008 Constitutions. The 1953 Land Nationalization Act nationalized all land, made landlordism illegal, and leased state land to cultivators u ­ nder a land-­to-­t he-­tiller policy. U ­ nder this law, the sale, mortgage, and division of land ­were not legally allowed, ­until the law was changed in 2012. Though the act also applied to the Scheduled Areas, in fact, the lack of enforcement meant that most customary land tenure practices continued undisturbed u ­ ntil the passage of the 2012 land laws. Soon ­after the military coup of March 2, 1962, General Ne Win announced the “Burmese Way to Socialism” (Steinberg 1982). In keeping with this policy, the 1963 Disposal of Tenancies Law was passed; it defined farmers as tenants on state-­owned land and further extended the granting of land to cultivators. In addition, the Farmer’s Rights Protection Law of 1963 was enacted to prevent confiscation of land by parties other than the military government, in the event of debt default by farmers. In this period, several directives ­were signed into force by se­ nior generals, the most notable being Executive Order 1/64, which stated that any

Land Tenure Reform   31

cultivator who had tilled a plot for the most recent five consecutive years would be favored to receive the use rights to that plot. ­Under socialism, the military enforced a paddy procurement policy from 1974 ­until 2003, ­under which farmers had to sell twelve baskets of paddy per acre to the government at a reduced price to feed civil servants and soldiers and to gain export earnings (Hudson-­Rodd et al. 2003). ­Those who could not meet the quota had their land confiscated and allocated to o ­ thers who w ­ ere considered to be more productive farmers, contributing to land concentration (Thawnghmung 2004). ­Under the policy to increase paddy output, farmers ­were encouraged to cultivate on reserve forest land and what was called “vacant,” “fallow,” or “virgin” land, an official classification of land that refers to land empty of inhabitants or that has been left uncultivated for so long that the state considers it to be uninhabited. Instead of updating the kwin maps with t­ hese new cultivated areas, which the SLRD had not done since the 1960s, ­these farmers ­were often given annual land use rights by township authorities.2 As a result, farmers did not receive official documentation for t­hese cultivated plots. Another reason for weak documentation of cultivated plots is that many farmers attempted to evade the harsh quotas by underreporting the size of their plots. The rice quota policy, along with the 1930s ­Great Depression, facilitated the decline of the sector. The country’s rice exports experienced a significant decline in production from the 1930s u ­ ntil 1988, a­ fter which the State Law and Order Restoration Council (SLORC) took power, dropping from an annual output of 3.177 million tons to fifty thousand tons (Mya Than 1990, 240). The SLORC started to adopt a market economy in 1988 to stabilize the economy, to prevent social unrest, and to maintain the regime’s hold on power (Fujita and Okamoto 2009). To promote private investment in agriculture and aquaculture, the regime passed the 1989 Aquaculture Law and the 1991 “Wasteland” Instructions (SLORC Notification No. 44/91), a concept brought to Myanmar by the British who wanted to exploit the land (Ferguson 2014). However, as the SLORC suspended the 1974 Constitution from 1988 ­until the ratification of a new constitution in 2008, it was effectively accountable to nobody. Thus, rampant land confiscation occurred ­under the Wasteland Instructions. To extend the market economy to the border areas, the military government signed ceasefires with armed groups from the late 1980s onwards, totaling forty bilateral ceasefires by 2010 (Min Zaw Oo 2014). Of ­these, thirty-­five groups transformed into military-­controlled p ­ eople’s militias or Border Guard Forces (BGFs) after 2010. With ceasefires in place, the military and its enterprises, state entities, and favored investors entered border areas to acquire land and other natu­ral resources (Talbott et al. 2016). This period was marked by rampant and unchecked

32  Chapter 1

land confiscation, a situation that Woods (2011) calls “ceasefire capitalism.” Lucrative deals involved the military conglomerates the Union of Myanmar Economic Holdings ­Limited (UMEHL) and the Myanmar Economic Corporation (MEC); government administrative bodies; and favored companies, often with foreign investors from countries that did not adhere to the West’s sanctions policy (Scurrah et al. 2015). Deals ­were extractive in nature and included oil and gas exploitation, the construction of hydropower dams, roads and other infrastructure, and agribusiness. According to the Burma Environmental Working Group (BEWG 2017), many of ­t hese deals led to the displacement of ­people and damage to their land and livelihoods, nearly always without compensation. Given this history, which was characterized by excessive exploitation ­after the SLORC government took power in 1988, reformist state actors’ rationale for initiating land tenure reform in 2012 was to address this legacy and to provide greater security to cultivators, while promoting the creation of a private property market. A ­ fter all, land and agriculture have been the backbone of the country’s economy and the primary livelihoods for most of its population.

Present-­Day Land Tenure Reform Myanmar is bordered by China to the north, Thailand and Laos to the east, and India and Bangladesh to the west. Myanmar has a land mass mea­sur­ing 676,600 square kilo­meters, with about half of that forested. Ethnically, religiously, and linguistically diverse, the population was 54.4 million ­people in 2020,3 with two-­t hirds living in rural areas. Myanmar is a low-­income country with a high incidence of poverty. Myanmar’s gross domestic product (GDP) grew from USD 49.54 billion in 2010 to USD 79.8 billion in 2019, before declining again ­a fter the onset of COVID-19.4 This translated into a gross national income per capita of USD 5,210 in 2019.5 This was associated with a reduction in the poverty headcount ratio, defined as the percentage of the population living below the national poverty line, from 42.2  ­percent in 2010 to 24.8  ­percent in 2017, according to the World Bank.6 The Asian Development Bank in 2014 identified agriculture as the most impor­ tant sector for Myanmar at its current stage of development. That year, the sector provided 56 ­percent of employment, produced 21 ­percent of exports, and contributed 31 ­percent of the GDP, which was much higher than the 12 ­percent average across all the countries of the Association of Southeast Asian Nations (ASEAN) (ADB 2014). Based on the latest available official data, produced in 2014, only 17.7 ­percent of total land was sown, while 30 ­percent of the land (other forests, cultivable wasteland, and fallow land) was officially “land at the disposal of the

Land Tenure Reform   33

state” and governed by the 2012 Vacant, Fallow, and Virgin (VFV) Land Management Law, which regulates the leasing of VFV land (see t­ able 1.1). Per the government’s own estimates, 75 ­percent (37.24 out of 49.39 million acres) of all the country’s VFV land is found in ethnic minority areas, where it is inhabited and has historically been administered u ­ nder customary laws and not state laws.7 The population is projected to grow from fifty-­t hree million in 2016 to sixty-­ five million by 2050, with the proportion of the urban population rising from 29.3 ­percent in 2015 to 34.7 ­percent in this period (GOM 2017). The pressures on land intensified with increased urbanization, population growth, and pressure to grow the industrial sector, as well as continued reliance on land-­intensive energy sources such as gas, oil, and hydropower. Realizing the importance of getting land management right, the government prioritized land management reform in the early years of the transition. However, the government was not able to simplify the l­egal framework for land management. The complexity created two major prob­lems by increasing conflicts within rural communities and conflicts between elites and smallholder cultivators. In August 2012, the government passed the Farmland Law (amended in 2020) and the VFV Land Management Law (amended in 2018).8 The director general of the Settlement and Land Rec­ords Department (“director general–­SLRD”), who presided over the passage of ­these laws, said that it was intended to give transfer rights to farmers, to develop agriculture, and to create a land market.9 ­Under the 2012 Farmland Law, if a farmer breaches the conditions of use, some of which are considered too strict by the farmers, the Farmland Administrative Body (FAB) may impose fines, take away land use rights, or both. A holder of a land use certificate (LUC), including individual cultivators, ­house­holds, and organ­izations (i.e., government bodies, companies, or associations), has the right to sell, to exchange, to mortgage, to inherit, and to lease. In theory, land users could retain a LUC as long as they do not violate the terms of use. In effect, this created a regulated private ­Table 1.1.  Classification breakdown of Myanmar’s total land area Type of land

Area (Ha)

% of total

Sown land Reserve forest Other land: canals, embankments, roads, e­ tc. Other forests, i.e., not reserved Cultivable wasteland Fallow land

11,869,000 18,596,000 16,611,000 14,842,000 5,285,000 457,000

17.5 27.5 24.6 21.9 7.8 0.7

Source: Data from GOM (2014).

34  Chapter 1

property system. By January 2016, official data showed that a ­little over nine million LUCs had been issued, or 98.8 ­percent of the government’s 2012 targets.10 The law also allows the state, through the FAB, to confiscate land for the “interest of the state and public.” While the Farmland Law provides more detailed guidance for calculating compensation when land is taken, challenges remain in calculating the market rate given the lack of systematic transaction and valuation rec­ords. Since the official version of the law says that “no proceedings s­ hall be filed at any court for any ­matter carried out in good faith in accord with this law or rules made ­u nder this law to the members of vari­ous levels of [the] Administrative Body” (GOM 2012a, 23), farmers are denied an in­de­pen­dent appeal pro­cess u ­ nder the law. The 2012 VFV Land Management Law regulates the leasing of land considered to be vacant, fallow, or virgin to alternative use (GOM 2012b). Except for smaller concessions of up to fifty acres, which can be granted by the regional governments, all concessions must be approved by the Central Committee for the Management of VFV Lands. ­Under this law, domestic and foreign enterprises and government and nongovernment entities could apply for up to five thousand acres at one time, up to a maximum of fifty thousand acres, with leases of up to thirty years with extension. The 2018 amendment of the law reduced the size of leases to three thousand acres per time up to a maximum of thirty thousand acres. Significantly, article 25(b) recognizes existing use of land by farmers should ­t here be a conflict with another claimant, such as an investor, to the land. This article was used in some cases to contest the lease of VFV land to investors, since most farmers did not have rec­ords for VFV land on which they farmed and ­were often unable to navigate the complex pro­cess to convert VFV land to farmland. In practice, farmers w ­ ere rarely able to retain the land or receive compensation when in conflict with an investor over the same plot of land (Mark 2016a). Instead, investors and administrators tended to ignore this article and charged farmers with criminal trespass and property damage when they refused to leave. By May 2015, 944 farmers faced imprisonment u ­ nder this charge, according to the Assistance Association for Po­liti­cal Prisoners (Mark 2016a, 450). The former director general–­SLRD commented on how the government’s issuing of LUCs across the country caused many changes as well as prob­lems: We are starting so many changes in this country. Th ­ ere are so many prob­ lems. Old prob­lems are appearing. We face challenges, but we try our best. . . . ​Land administration is better than in the past, but we cannot say every­t hing is complete. Basic laws require more detailed instructions, but

Land Tenure Reform   35

the main t­ hing is the implementation from central to local levels. This w ­ ill require good attitude and expertise.11 The new land institutions interacted with dif­fer­ent social, economic, and po­liti­ cal dynamics across the country, resulting in some positive but often many negative impacts on rural communities. Boutry and Allaverdian (2017) found that in some parts of the country, such as the Dry Zone, where communities w ­ ere established longer, w ­ ere less mobile, and had smaller landless populations, the issuing of LUCs encountered l­ittle difficulty and had positive impacts. In t­ hese places, more established communities meant higher trust between h ­ ouse­holds, more established patterns of land use and owner­ship, and less competition for landholdings given the lower rate of landlessness. A ­ fter receiving their LUCs, some farmers traded plots with one another to make their landholdings contiguous and easier to farm. Many also used their certificates to facilitate their access to government bank loans. More diverse outcomes ­were evidenced in upper and lower Ayeyarwady Region, colloquially referred to as “the Delta.” Compared to the upper Delta, which has older settlements, smaller plots, and less migration, the lower Delta has more mi­grants, larger plots, less fertile land exacerbated by climate change, newer villages (some not older than twenty years), increased landlessness caused by Cyclone Nargis in 2008, and a history of farmers who were encouraged to clear forests to increase crop output (Boutry and Allaverdian 2017). The state used the conversion of forest into agriculture land as a strategy to root out Karen insurgents hiding in the forests through the 1980s and 1990s (Thawnghmung 2003). ­These ­factors contributed to low trust, less established patterns of land use, and high competition over land. In lower Delta, land certification applications languished in the township FABs. In the extreme, t­ here w ­ ere 417 documented conflicts over t­ hese applications in the township of Bogale alone in 2014–2015.12 In another case, in the village of Kun Chaung in Mawlamyinegyun Township, farmers w ­ ere involved in a long-­ standing conflict with the Forest Department over registration of land on which they had been farming.13 Despite possessing tax receipts, which villa­gers interpreted as proof of their owner­ship entitlement, the villa­gers could not get permission to convert this land into farmland from the Forest Department, which asserted that the village was illegally established forty years ago on forest land. According to the SLRD director for Ayeyarwady Region, the certification pro­ cess opened many conflicts due to a history of informal land sales, the former policy of paddy quotas, and tenancy farming, in which a landlord allows a landless farmer to use land, usually in exchange for part of the crop. The paddy quotas led many farmers to lend their land to friends or ­family members, who ­later

36  Chapter 1

claimed owner­ship, or to underreport the land the farmers ­were actually cultivating. The state could not accurately capture the ground real­ity of ­t hese dif­fer­ ent informal arrangements. The director explained: ­ fter the VFV Land Management Law was passed, a lot of farmers’ land A was included ­u nder this category. That is the prob­lem we are trying to fix. . . . ​Maps from the central level are very dif­fer­ent with the real­ity on the ground. ­Under the military government, they said to give, give, give. Now we are trying to fix the prob­lem.14 The minister of agriculture for Ayeyarwady Region admitted that it was not easy to solve the prob­lems of competing claims and to verify owner­ship.15 Given the variation among conflicts, each case had to be considered separately. Though ­t here continued to be a lack of clarity over the legality of Executive Order 1/64, given the cancellation of the 1963 Disposal of Tenancies Law to which the order was related, that order was the most commonly applied guidance used in determining uncertain owner­ship. Titling was even less straightforward in ethnic upland areas, where administration of land is contested by multiple authorities, including the government, ethnic armed groups, and other militias. Faxon’s (2015) study documenting cases of villa­gers accessing LUCs in seven villages in Kachin State found that villa­gers experienced varying degrees of success due to several impediments. War, insecurity, and contested authority in Kachin State l­imited interactions between the government and local communities. Military, Chinese, and crony companies overrode communities’ claims to land based on preexisting use. Mismatches between government laws and customary land claims routinely prevented communities from securing official recognition of their lands. Politics at the community and ­house­hold levels advantaged local elites and men, while disadvantaging mi­g rants, ­w idows, and ethnic minorities in some areas. Fi­nally, when communities w ­ ere able to start the application pro­cess, they faced numerous prob­ lems, such as lack of clarity regarding procedures, long travel and wait times, and corruption. All ­these ­factors ­were exacerbated by the poor resourcing of government administrative bodies involved in the land registration pro­cess. Local leadership was vital in facilitating a successful outcome. Village leaders mobilized communities, mediated between them and officials, negotiated costs and time frames to minimize delays, and even mobilized funds from within the communities or external development groups to cover the cost of the multistep registration pro­cess. Strong social cohesion and cooperation within a community ­were key to success.

Land Tenure Reform   37

Adding to the challenges w ­ ere gaps in administrative capacity, including outdated maps, rudimentary technology, and the lack of a central registry, which contributed to errors in the formalization of land claims. For example, in one township in Mon State, the SLRD office was supposed to distribute 33,158 titles in fourteen months, with only twenty-­two staff, a l­ imited bud­get, outdated maps, and rudimentary technology.16 To meet work targets within t­ hese constraints, SLRD field offices had to take shortcuts, such as not verifying maps with ground checks. Compared with other countries, such as Thailand, that have a centralized government registry of titles of all landholdings that serves as the ultimate arbiter in competing land claims, what exists in Myanmar is a system fraught with multiple claims, in which competing parties hold some type of deed to the land, such as contracts, tax receipts, and government forms. As a result, claims to owner­ship are often contested.17 “The government mapping is causing ­these conflicts. Before this, ­there w ­ ere no conflicts,” said a pro bono l­awyer who worked to resolve land confiscation cases.18 In many cases, elites ­were able to exploit the administration’s stretched capacity. Coupled with the capacity gaps is the court’s tendency to accept papers as the strongest proof of owner­ship, regardless of how they ­were obtained. In a case in Mawlamyinegyun Township in the Delta, a farmer had part of his land grabbed by his neighbor a­ fter the neighbor received a LUC detailing his plot with incorrect bound­aries that extended into the farmer’s landholding. The neighbor took advantage of this situation by suing the original owner for trespassing. The judge ruled that the neighbor had the right to the extra land as he held all the proper paperwork.19 In another case in Mon State’s Thaton Township, a local elite secured the oral testimonies of “witnesses” in order to grab the land of his neighbor, a ­w idow who had been living and cultivating that land in the de­cades prior.20 With falsified documents, he convinced the village tract leader to endorse the application, which was approved at the township level. The aggrieved in such cases w ­ ere often unable to appeal official decisions, b ­ ecause FAB decisions cannot be appealed in the judiciary. Commenting on this type of situation, the SLRD officer for the Ayeyarwady Region said, “That’s the law, it is done.”21 Despite the stated intention that the new land laws w ­ ere created to promote the country’s move t­ owards a stronger rule of law, in real­ity, the introduction of such laws into Myanmar’s po­ liti­cal culture often resulted in less security for many farmers.

Rule of Law as Law and Order In Cheesman’s (2015) book Opposing the Rule of Law, the author argues that the concept of “rule of law,” as it was practiced in most of Myanmar’s modern history, was animated by ideas predicated on the need for law and order. He explains

38  Chapter 1

that the legacy of law and order as a prerequisite for security came from the postin­ de­pen­dence period, when Myanmar was rife with armed re­sis­tance and crime, a logic similar to the one b ­ ehind the 1962 coup in which the military feared that federalism would break up the u ­ nion. Despite frequent references to the concept during the transition period, rule of law as it was practiced during that period upheld the state’s prioritization of law and order, which required denying the extension of full rights to all citizens, some of whom ­were judged by the state to be risks to this order. Prasse-­Freeman (2015, 107) says that the rule of law “appears poised to become part of a diffuse and nebulous regime of control that entrenches extant hierarchies and justifies the status quo against social movements working for par­tic­u ­lar local conceptions of justice.” Cheesman (2015) also notes that the two concepts of law and order and the rule of law are not in fact separate but conflated. Thus, while the government claimed that the country would see an expansion of rights ­under new laws, at the same time vari­ous checks w ­ ere incorporated into the text of t­ hese laws or in their interpretation to ensure that ­people ­were prevented from fully claiming their rights. This was evident in the design of the 2012 Farmland Law, in which judicial checks on administrators are forbidden. However, lawmakers countered that this law is administrated by an impartial body, which has checks and balances built within it. The former director general–­SLRD explained: Article 40 implies that the Farmland Administrative Body acts with no bias and good faith. If the com­pany commits corruption, then this is not good faith. In this case, farmers can appeal to higher authorities within the body, and call for an inquiry. Up u ­ ntil now, we ­haven’t thought to have arbitration in the court. The body itself does not only involve agriculture staff; it also has the GAD, farmer representatives, and is headed by the Chief Minister at regional levels.22 In contrast to this perspective, the examples given in this chapter demonstrate how the new land laws ­were introduced into a po­liti­cal culture that was slow to dispense justice. Maung Gyi (1983, 170–171) describes Myanmar as a “law of status society,” in which “a person is never viewed as a neutral member of society possessing rights and privileges as a h ­ uman being” and that “re­spect and attention is regulated according to the social scale.” Expressing his frustration with the abusive application of laws in Myanmar’s hierarchical society, a member of the Mandalay L ­ awyers Council lamented: ­ ere have always been prob­lems with farmers and land grabbing, ­whether Th ­under [King] Anawrahta or the current government. . . . ​It is not that they

Land Tenure Reform   39

­ on’t know about the 1894 Land Acquisition Act; they just ­don’t care to abide d by it. The practice of law has always been contaminated by the rulers.23 Similarly, acquisition of land from local communities tended to be carried out by the government without adhering to its own laws regulating fair notice, consultation, resettlement, and rehabilitation. Commenting on this, a pro bono ­lawyer said: “­There is nobody watching over what is right and what is wrong when it comes to land confiscation by the government. P ­ eople also need to have the courage to prosecute the companies and the government.”24 Laws, when interpreted by courts, often led to outcomes that favored ­those close to power, since “successive military rulers have made the courts into a reliable instrument for authoritarian control” (Cheesman 2009, 612). Courts, while formally ­under the Office of the Supreme Court, ­were strongly influenced by the GAD, which historically reported to the military-­led Ministry of Home Affairs.25 In the early transition years, l­ egal advocates employed a strategy of highlighting the fundamental disconnect between policy purporting to promote rule of law and what the law was actually used for: to maintain control of what the state considered to be unruly populations. After 2012, the number of criminal cases involving farmers taken up by pro bono ­lawyers grew, often with support from foreign donors. Even when ­lawyers knew chances for winning ­were small, they took up t­ hese cases to prevent willful misinterpretation of existing laws and to advocate fairer applications of law across all groups in society. However, given a lengthy pro­cess of up to three years and a judiciary ­under the control of the Ministry of Home Affairs, strug­gles l­imited to the l­egal sphere did not reap significant gains for rural communities. In contrast, most of the reparations made to farmers in land conflicts w ­ ere achieved outside the courts, usually through effective mobilization of farmers associations, community-­based organ­izations, nongovernmental organizations (NGOs), and the media (Mark 2016a).

Challenging ­Legal Concepts in Land The state’s interpretation of the rule of law as law and order also extended to laws that govern land. During the transition years, civil society challenged key concepts that underpin the traditional power structures of land access and control, especially the official claim that “the state owns all land.” The official view advocated is that the central government represents the state and, by default, has ultimate control of all resources in the country. This view is captured in chapter 3, article 30(1) of the 2008 Constitution: “The state is the ultimate owner of all lands.” Instead, advocacy groups emphasized chapter 1, article 3,

40  Chapter 1

which says that the “sovereignty of the Union resides in the p ­ eople,” and countered that the state should act as a custodian, not as the ultimate owner. The minister of agriculture in Kayin State echoed this view: ­ eople make up the state and give it powers through elections. . . . ​The state P manages the land, but do the p ­ eople agree to this management system? If ­people d ­ on’t give agreement, it’s the state’s fault. This is b ­ ecause t­ here has not been sufficient consultation. For example, the Constitution was not created with the support of the ­people. But t­ here is also weakness in the ­people; they are afraid and ­don’t know their rights.26 Advocacy groups routinely argued that the taking of land must be justified by clearly demonstrated “public interest.” In Myanmar as in other countries, the definition of this term remains vague to allow land confiscators to avoid accountability. Public interest l­awyers used this concept as a basis for challenges to land confiscation, as recounted by a ­lawyer in the Myanmar ­Lawyers Network: Seven years ago, land was taken to build a military office [Bureau of Security Investigation]. I argued that this was taken not for the good of the ­people, but for the military’s own interest. They tried to force us to accept payment. One thousand to 1,500 lakhs [one lakh equals 100,000 Myanmar kyats] is the estimated market price around Kanna Lan according to the revenue office, but they tried to force us to take much less, six lakhs. We lost that case. We have to think w ­ hether the land is confiscated for the ­people. The government c­ an’t claim that the land is taken for the public’s interest, but the land in this case is used only for the military. It would be dif­fer­ent if it ­were for a public hospital, school, a bridge, ­etc. We need to think carefully about what the land is taken for.27 The director general–­Forest Department opined that land acquisition could be less problematic if public interest is proven and implementation better handled. He said, “Look at the Yangon-­Naypyidaw Highway. When we moved ­people, they did not protest. This proj­ect is for public interest. We had clear procedures. Other proj­ects are not so clear. ­There is a lack of transparency. Who owns the land? Who benefits?”28 Civil society organ­izations also objected to the state’s definition of “squatters.” Especially in parts of the country afflicted by armed conflict, weak administration led to outdated maps that did not match real­ity on the ground. For several reasons, including population growth, policies that encouraged ­people to cultivate

Land Tenure Reform   41

forests or VFV land to meet rice quotas, and the need to flee conflict areas, many communities settled and cultivated on lands not allocated to them. As a result, many rural and peri-­u rban populations fell ­u nder the category of “squatter.” However, the official government position tended to apportion blame to p ­ eople and not to poor administration. This issue was identified as a major obstacle to the economic development of the country by President Thein Sein in his national address on June 19, 2012: We have difficulties in land management as squatters on forest land, virgin, and fallow land and o ­ thers are acting as if they originally own the plot they illegally occupied. The result is the widespread prob­lems and b ­ ecause of t­ hese prob­lems, we are not in a position to allot a large number of hec­ tares of land for investments as other countries do.29 While many in the government considered t­ hese communities to be squatters on state land, state reformers showed more leniency. The director general–­Forest Department said, “One type is local ­people who encroach for daily subsistence. This is why the President allowed for conversion. . . . ​Most of t­ hese ­people are innocent.”30 Following President Thein Sein’s one-­off executive decision, the Forest Department allowed 1,213 villages with fifty or more h ­ ouse­holds residing in forest reserves to convert their land to settlement and agricultural land.31 ­After a rapid study, eight hundred acres w ­ ere identified to be transformed into community forests or converted to other land uses. By mid-2013, 345,889 acres ­were converted into settlements and permanent agriculture. This included 24,447 acres of residential land; 295,320 acres of farmland; and 26,122 acres of public buildings, including schools, clinics, and religious buildings. A director in the attorney general’s office lamented that the state has not dealt with this prob­lem for many years. He said: We have not been able to fix the squatters’ prob­lem. . . . ​The farmers who have been farming t­ here for a long time think they are right. A hma kyar, a hman pyiq [over time, a wrong becomes a right]. When a com­pany comes in with a permit, they do not want to leave. If a com­pany is given land, the government needs to deal with the farmers. . . . ​W hy the farmer is occupying VFV land should be considered. For example, if they used damaucha [customary owner­ship derived from being the first to clear land] for cultivation, the state should avoid taking this land. If the land is taken for proj­ects, the state needs to negotiate with them. . . . ​Every­one in the government can accept that the farmers are not always wrong.32

42  Chapter 1

To deal with the prob­lem, the director said that the government should have clear laws and regulations to which all parties must abide: If the government agrees to give land to all who trespass onto VFV land, this can lead to many uncontrolled land occupations around the ­country . . . ​I have mixed feelings. I want to protect citizens, but we have no choice sometimes b ­ ecause they ­don’t know the laws. Some know the laws, but they d ­ on’t want to obey.33 Rights groups, such as ­Human Rights Watch (2016), advocated for the state to uphold its obligation to protect its citizens, considering a history of poor state administration, especially in peripheral areas. Debates over the concepts of eminent domain, public interest, and state obligation to protect citizens w ­ ere central to the design of more demo­cratic land institutions. In the early years of its transition, the government extended new laws with the aim of clarifying and formalizing private property rights. While ­t hese changes provided increased security for many rural ­house­holds, particularly in the lowlands, they also raised insecurity for many ­others. The introduction of such laws on top of an already ambiguous stacked l­egal framework and a complex history of informal land transactions erupted into an unexpected number of conflicts that a thinly equipped administration was barely able to ­handle. Furthermore, as conflicts mounted within communities and between communities and outsiders, the resolution of such cases continued to be dictated by an official interpretation of law as an instrument to maintain order and social hierarchies, with the result that rulings often went against smallholder farmers. Given the intractability of old institutions, ­little pro­gress was made through strict employment of l­egal channels to address smallholder farmers’ land cases. In the transition years, affected communities, civil society actors, and ­legal advocates challenged the l­egal po­liti­cal culture by pointing out the contradictions between the official discourse of demo­cratic transition and the failure of laws to broadly guarantee rights. Unquestionably, Myanmar’s land politics unfolded in a context rife with complications. Nevertheless, as the following chapters ­will demonstrate, pockets of society found openings to incrementally advance reforms in land governance in this period when state reformers ­were sensitive to shoring up po­liti­cal legitimacy.

C HA P T E R T WO

The State’s Quest for Legitimacy Opens Space

In November 2012, in a chandelier-­lit meeting hall in the capital of Naypyidaw, land activists, l­ egal advocates, and high-­level officials, including cabinet members from President Thein Sein’s administration, came together for the country’s first national-­level land symposium. This was facilitated by members of the president’s National Economic Social Advisory Council and the Land Core Group (LCG), a national land advocacy organ­ization whose formation I was closely involved with through my work with the Pyoe Pin Programme. Although careful planning went into the preparation of this two-­day meeting, including a detailed schedule with a preselected list of speakers, nothing prepared the audience for how the event would unfold. ­After all, it would be the first time that activists would have a chance to vent to high-­level policymakers about their decades-­long grievances over confiscation and other policies that immiserated millions of smallholder farmers around the country. The morning had the usual formalities, with perfunctory opening speeches and a group photo session, but by the after­noon, land activists became restless. During the question-­and-­answer sessions, they formed long lines in front of the standing microphones and, one by one, fired their accusations couched as questions at the officials. Each session was extended from ten to at least thirty minutes, as the moderator desperately tried to get the activists to take a seat and to ease palpable tensions in the room. Then, U Thin Naing Thein, a cabinet member in the Office of the President, said something unexpected to the roomful of angry activists. He acknowledged the activists’ accusations and said that the government accepted responsibility for the past. Hearing that statement, a vis­i­ble change came over the agitated participants. For the remainder of the workshop, activists dialed down the volume of their voices as they shifted to a more conciliatory tone. Two years l­ater, the interactions between activists and policymakers in a series of consultations held in 2014–2015 for the drafting of the National Land Use Policy (NLUP) looked very dif­fer­ent from the first tense encounter. Demonstrating a changing culture within the policymaking space, the director general–­Forest Department said, “I myself am very satisfied to work with CSOs [civil society 43

44  Chapter 2

organ­izations]. A ­ fter we let them talk w ­ hether argument or suggestion, we respectfully considered it. That is why we could formulate the policy with strong participation.”1 The change in tone at the NLUP consultations signaled an evolving po­liti­cal context in Myanmar as the state shifted from a regime characterized by dominance and coercion to one that appeared to respond to demands for greater accountability. At the start of the transition phase, Callahan noted that “the military-­as-­institution no longer runs day-­to-­day politics in Burma” and that “they have undertaken reforms to imbue the new governing apparatus with the symbols, rhe­toric, and even the substance of a ‘demo­cratic’ state” (2012, 129, 123). Indicative of a state that was moving away from employing outright coercion ­towards seeking a degree of consent, the demo­cratic transition in Myanmar was accompanied by a marked embrace of the “rule of law” rhe­toric, albeit superficial in many cases, and the passage of new laws and amendment of old ones with the stated intention of expanding l­egal rights to more spheres of life, even while some laws imposed greater restrictions. This context created openings for and emboldened p ­ eople to demand that the state guarantee their rights through official channels of negotiation and compromise, as well as in spaces outside ­those channels. This chapter focuses on the country’s transition ­towards democracy, as part of its larger political-­economic transition, and how it created openings to advance progressive land politics, even while the pro­cess faced obstacles at ­every turn. The chapter begins by discussing how the transition facilitated the gradual shift of Myanmar’s po­liti­cal culture away from one characterized by state domination without consent to one characterized by greater public demand for state accountability. To illustrate how ­these dynamics unfolded in the country’s official land politics, I examine two national-­level pro­cesses that occurred ­under the Thein Sein government: the formation of the Parliamentary Land Investigation Commission in 2012 and the development of the 2016 NLUP. This is followed by a discussion of the disruptive politics of social mobilization employed by civil society actors who judged official politics to be in­effec­tive in bringing about substantial changes.

History of Domination without Consent The period of military rule in Myanmar could be described as “domination without hegemony” (Gu­ha 1997): ­people ­under the military regime ­were dominated but unlikely to have given their consent. Cultural, military, and economic arguments have been made to account for the durability of military rule (Nakanishi 2013). Maung Gyi’s (1983) description of traditional Burmese po­liti­cal values during the era of the monarch depicted the state as omnipresent and all-­powerful and

State’s Quest  45

the Burmese ­people as submissive to the state. He said that ­because it was unthinkable to limit the king’s power, “the ­people w ­ ere thus left to only two choices, ­either to accept the government policy, technique, and actions as fair, just, beneficial, and proper, or to remain completely s­ ilent” (Maung Gyi 1983, 48). Similarly, Walton (2012a; also see Walton 2016) explains that nain ngan ye (affairs of the state) ­were u ­ nder the purview of kings and their inner circles for several reasons. ­Under the Theravada Buddhist vision of the world, rulers earned their place and abilities from their past actions, called kan. Their superior morality-­based powers w ­ ere called hpoun. Furthermore, it was believed that average ­people did not possess the intellectual and moral abilities to participate in politics—­a belief that carried on a­ fter in­de­pen­dence. A member of Loka Ahlinn, a rights-­based organ­ization, corroborated this explanation: ­ ere is no direct translation for the word “legitimacy.” It is very dif­fer­ent Th from the foreign understanding of this word. It is most closely translated as tayar win hmu, which has close associations to what is l­egal and official. Every­one has to follow and accept the ­orders from the authority ­because we are a hierarchical society. . . . Ac­cep­tance of authority has to do with the Buddhist cosmos thinking. It is related to the idea of hpoun kan—­whatever you have now, you did something to get it. A strong king is in power ­because of his hpoun kan. Therefore, ­people must accept to be ruled by ­these leaders. In Burmese history, from [King] Alaungpaya onwards, when a king dies, ­t here is a lot of internal fighting for this power. They never asked for popu­lar support, so ­people must accept whoever takes power.2 ­ fter the 1962 coup, the military attempted to justify its rule through both coA ercion and persuasion. It fashioned itself as the savior and guardian of the ­union, in the lineage of the ­great Bamar kings of the past. Walton (2012a) points out that in state media, the military government often referred to the rampant disorder in the country in the postin­de­pen­dence years, as the country was plagued by ideological, ethnic, and religious conflicts. A 2008 editorial in the government newspaper New Light of Myanmar warned of the “evil consequences” that could result if the military leadership could not oversee the path t­ owards democracy, reminding readers that “in the period of the parliamentary democracy in which the Tatmadaw [the military] did not participate in the politics, the Union was on the edge of collapse” (Walton 2012a, 203). In essence, the military believed that they ­were best placed to be the guardians of the u ­ nion and to lead the country in a transition that would minimize po­liti­cal disorder (Callahan 2003).

46  Chapter 2

­These ideas went hand in hand with a pro­cess of building up the military’s material capabilities in warfare. A ­ fter seizing power in 1962, the Tatmadaw,3 as the armed forces w ­ ere called, continuously expanded; from 1988 to 2002 alone, the Tatmadaw’s numbers doubled from two hundred thousand to four hundred thousand (Selth 2009, 282). At the same time, it went about building its institutional strength. Nakanishi (2013, 25) argues that the military’s longevity was due to the way it broadly embedded itself into state structures: “This pro­cess was the development of the tatmadaw as a bureaucracy as well as the institutionalization of the pattern of interest distribution which contributed importantly to Ne Win’s dictatorship and his regime’s survival.” Economic f­ actors ­were also used to control ­people. The military used a command economy to keep the price of basic goods low, especially rice. The average price of rationed rice remained at about 50 ­percent of the ­free market price for the period of 1962–1963 to 1986–1987 (Okamoto 2005, 5). When rice was first liberalized in 1987, the price of rationed rice was kept at 21  ­percent of the ­free market price on average for the period of 1988–2001. The removal of this subsidy, alongside ­others across several sectors, contributed to the frustration that fueled the 1988 Generation Students’ Movement (“88 Generation”), the last mass uprising before the one following the 2021 coup.4 ­After that, new revenue streams from natu­ral gas exports in the early 2000s helped the regime survive even without a functioning tax system (Nakanishi 2013). However, t­ hese could not carry the regime for long. Without strong administrative capacity, the regime was soon strained by poor economic management. In 1987, the United Nations placed Myanmar on the list of the least developed countries. ­Under sanctions initiated in 1990 by the West, Myanmar became eco­nom­ically reliant on China. This period was characterized by low levels of employment, poor economic growth, and delayed industrialization. By 2007, agriculture still made up 43.4 ­percent of the GDP, not much dif­fer­ent from the 47.9 ­percent contribution of agriculture in 1938–1939 (Myint 2009, 15). Used to relying on a command economy, as illustrated by the government’s demonetization of the currency in 1985 and 1987, which led to a significant loss in savings, the military demonstrated that it did not have the technical means to correct this chronic economic situation. A report by the International Crisis Group (ICG 2014, 10) says, “Economic reform was seen as vital to the ­f uture of the Tatmadaw and the country by the military-­political elites, and some loss of privilege was inevitable.” In terms of po­liti­cal legitimacy, the government had ­little of which to speak. Myanmar was considered a pariah state by most of the international community. Domestically, given the increasingly oppressive nature of its rule, the military faced heavy criticism from opposition democracy leaders and, eventually,

State’s Quest  47

even Buddhist leaders, many of whom participated in the 2007 “Saffron Revolution.” Walton (2012a) posits that Buddhism was central to the construction of Myanmar’s politics and argued that po­liti­cal leaders w ­ ere historically accountable for upholding a Buddhist morality and cosmic order. As the military regime became increasingly oppressive in its use of force, it also lost the support of many members of the sangha, the Buddhist order. Although ­t here w ­ ere already other under­ lying structural issues, many credit as the trigger for the uprising the removal of government fuel subsidies, which made the price of fuel rise by 500 ­percent in less than a week.5 By late 2007, monks around the country had become or­ga­nized to demonstrate their disapproval of the military government. The most visceral images of this uprising ­were from September 24, 2007, when tens of thousands of monks marched and chanted through the streets of Yangon. Walton explains: Even though they had criticized the military government for its negligence ­towards the population and for its violent actions ­towards monks . . . ​their opposition was not t­ owards individual members of the government, but for the purpose of ending injustice and suffering. (2012a, 177) This demonstration was met by a violent crackdown by the military. The searing images of monks being shot at for their nonviolent protest further alienated p ­ eople from the regime. The next year, the ineptitude of the military state became more apparent. It failed to effectively respond to Cyclone Nargis, which struck on May 2, 2008, and was the country’s largest natu­ral disaster to date. The regime was challenged both eco­nom­ically and ideologically. Following in the footsteps of military regimes around the world, the regime soon came to realize its need to rely on civilians to help it govern (Finer 1962). Despite the chaos left by the cyclone, the government held a referendum, considered by most to be manipulated, to adopt the 2008 Constitution and proclaimed the country as a federal u ­ nion in name.

The State Seeks Consent, and the Public Demands Accountability In Myanmar, several f­ actors ­shaped public consciousness t­ owards po­liti­cal engagement. Walton (2012a) argues that the sangha played a role in raising public po­liti­ cal consciousness. He explains that although monks derive their moral authority largely from their detachment from mundane concerns, their involvement in politics is at times justified by perceived threats to the religious moral order. Hti La

48  Chapter 2

Aung, a member of the All Burma Monks Alliance, one of the leading organ­izing groups of the Saffron Revolution, published on the links between Buddhism and politics. By emphasizing the agential power of kar­ma, he highlighted ­people’s ability to control their own destiny and their desire to be ­free of oppression: ­ eople are creatures who create their own conditions through their own P actions (kan kyama), who want to be ­free, and who have a strong desire to be ­free. ­People have a nature and ability that opposes repression and control. That nature is democracy/demo­cratic. (2007, 38, quoted in Walton 2012a, 215) Second, the growth of civil society further contributed to the development of a public po­liti­cal consciousness. ­Earlier on, groups such as the Young Men’s Buddhist Association ­were formed ­after and sometimes in response to the arrival of Christian missionaries, with some of them espousing nationalist sentiments (Steinberg 2006, 155). Civil society organ­izations ­were also created to meet social ser­vice needs or w ­ ere set up as cultural and religious organ­izations (Kramer 2011). In more recent history, Cyclone Nargis also brought with it an opportunity for civil society to grow as aid surged into the country. Other ­factors also motivated this growth: ser­v ice gaps around the country and particularly in remote areas; increased attention to environmental protection issues with greater exploitation of the country’s natu­ral resources; and ceasefires in conflict areas, which raised attention about humanitarian needs (Kramer 2011). Although ­people became more po­liti­cally engaged during the transition period, the history of rule had already created a distrustful relationship between the ­people and the state, which continued into the Thein Sein government. A Loka Ahlinn member said, “They think the government is evil and want to stay away from them. In this current regime, many ­people think engaging with the government is in­effec­tive for them.” 6 This statement revealed a disbelief in the Thein Sein government’s commitment to genuine reforms. Similarly, the founder of a demo­ cracy studies journal said, “The current government hungers for legitimacy from the international community. Even if they d ­ on’t like it, they try to practice it. . . . ​ The military might be returning some land and paying some taxes, but they are not r­ eally giving up their power.”7 Along with this distrust, most ­people’s understanding of the state and its role was still poorly formed in the early years of the transition. In a 2014 national survey about civic knowledge, the Asia Foundation (2014, 12–13) found that citizens had low awareness of their government. Findings included the following: 82 ­percent of respondents could not name any branches of the government; 44 ­percent believed

State’s Quest  49

that the president was directly elected by the public and not appointed by a special body; 15 ­percent knew that the Pyidaungsu Hluttaw (Union Parliament) was the lawmaking body; 76 ­percent said they did not know the functions of the state and region governments; and only 5 ­percent said they w ­ ere very interested in politics, while only 9 ­percent said they often discussed politics. As the po­liti­cal culture began to shift, and ­people ­were given more options through elections, a growing minority began to demand accountability from po­liti­ cal leaders. While elections themselves have only superficially translated into greater accountability of governments to their citizens in many countries around the world, creating “illiberal democracies,”8 this procedural form of democracy likely motivated the average citizen to take a greater interest in politics. The 2014 Asia Foundation survey found that 70 ­percent of ­people thought participation in the elections would have an impact, evidenced a year l­ater by the high turnout of voters. More p ­ eople, particularly in the urban areas, became more aware and increasingly unwilling to accept the ways of the old regime. A Loka Ahlinn member commented: Most p ­ eople are very s­ imple, but when they c­ an’t take it anymore, they respond with vio­lence, even risking their lives. ­Every de­cade t­ here is major protest since colonial era. The 88 Generation uprising was the first to demand that this regime change. . . . ­There are increasingly more p ­ eople, particularly urbanites, who do not buy into the hpoun kan idea. They are demanding accountability from a regime that profited from the country. The USDP [Union Solidary and Development Party] is getting lower and lower, and this makes them try harder to look good.9 Echoing this sentiment, a land activist, who contrasted the Thein Sein government with the military one, noted that ­people could fi­nally negotiate with the government: ­ ese prob­lems [with land grabbing] started when military law came to be Th in 1988. The powers ­were only in the military commanders’ hands. With this power, they grabbed land, mostly for strategic transportation. Th ­ ere ­were no rec­ords of what was taken or assessment of what was used. . . . Though p ­ eople said this was a “military government,” at this time, ­there was no government. What p ­ eople understand is that this was a ruthless group with guns who looted every­thing from the p ­ eople. Now, they think that t­ here is a government, and they can ask it to return land that was taken unjustly.10

50  Chapter 2

­Because Myanmar was still a nascent democracy, what it meant for government to be “accountable” was not well understood and was not practiced. Six po­liti­cal parties claiming to represent farmers’ interests w ­ ere registered by Sep11 tember 2015 for the election l­ater that year, but aside from land being a part of the National League for Democracy’s (NLD) election manifesto, land issues did not feature prominently in most campaigns (Kempel et al. 2015). Nevertheless, ­people themselves leveraged the election to get land returned. Min Ko Naing, a prominent 88 Generation leader, at the launch of their organ­ization’s report about land grabbing one week before the election, said it was crucial that ­people use the election to elect t­ hose who would be accountable to their demands.12 This kind of public sentiment was high in the months before the election, coinciding with land returns by USDP officials seeking reelection. In Mandalay Region, about four hundred acres out of thousands taken for military proj­ects in Chief Minister Ye Myint’s constituency ­were returned months before the election.13 Taking advantage of election politics, a group of farmers from Shan State or­ ga­nized a press conference on October 3, 2015, in Yangon to demand that the Shan State minister of forestry and mining, who was also chairman of the Shan Nationalities Demo­cratic Party, return land confiscated from the farmers in 2012. The press briefing and the farmers’ banner, which read, “We appeal to U Sai Aike Paung to return the land,” ­were clearly directed at the minister. According to the six farmers who spoke at the briefing, which was moderated by a Buddhist monk, the Anglo-­Burma Rice Com­pany Ltd., in which the minister held shares, confiscated their land. “The Minister did not acquire the land correctly, but used the law to help him get it,” declared one of the aggrieved farmers who demonstrated and served jail terms for trespassing. Armed with vari­ous documents concerning the contested land parcels, the farmers or­ga­nized a press release to “tell the entire country about their suffering” and to seek redress.

Official Politics The changes in Myanmar’s po­liti­cal culture that have been described broadened opportunities for social actors to engage in official politics and to demand that the government fulfill its obligations to guarantee p ­ eople’s rights to land. The shift in the po­liti­cal context persuaded many civil society actors to depart from their ­earlier antagonistic stance t­ owards the government and soften their initial stance of opposition to one of compromise. As well, the discourse of increasing government accountability, even if largely symbolic, instilled greater confidence among citizens that the government would be more responsive to their needs. Encouraged by the change in national-­level official rhe­toric and the activism of civil

State’s Quest  51

society leaders, local communities also forayed into po­liti­cal activism. The result was that many p ­ eople began engaging with new government mechanisms to right past injustices about which they had remained s­ ilent for de­cades.

Parliamentary Land Investigation Commission The Parliamentary Land Investigation Commission (PLIC), formed at the fourth session of parliament on August 8, 2012, was one of the main pro­cesses introduced by the government to officially address past land confiscations. Ten subcommittees investigated cases across the states and regions against the 1894 Land Acquisition Act and its related 1932 Land Confiscation Procedural Act. Reflecting a “law of status society,” as described in the previous chapter, land concessionaires had flagrantly flouted the 1894 Land Acquisition Act. A pro bono ­lawyer representing farmers in land conflict cases said, “It is not that ­t here was no law, but it was completely ignored in most cases.”14 The PLIC considered only cases that had occurred from 1988 to 2010 and excluded many cases that involved large-­scale ongoing proj­ects, such as the Letpadaung copper mine, a joint venture between Myanmar and Chinese private and public investors. “Many in the government argue that since land was nationalized in 1953, t­ here is no need to pay. That is why we only focused on cases starting in 1988 to 2010, u ­ nder the military government,” said the minister of agriculture for the Ayeyarwady Region.15 The announcement of the formation of the PLIC encouraged communities affected by land confiscations to raise complaints. Farmers engaged in a form of “rightful re­sis­tance” by g­ oing through “approved channels and us[ing] a regime’s policies and legitimating myths to justify their defiance” (O’Brien 1996, 33). When I asked why they de­cided to speak up a­ fter so many years, a farmer in a village that I visited in Ayeyarwady Region explained, “We heard the president say that he ­will support the return of illegally confiscated land to the farmers. We also heard about the Parliament setting up a commission in August 2012 to investigate ­t hese cases.”16 The PLIC issued a series of eigh­teen reports to the Union Government Office on the pro­gress of their work from September 2013 to January 2016, ­towards the end of the Thein Sein government’s term. Their eigh­teenth report said that the commission had received and filed 14,756 separate complaints, some complaints involving multiple ­house­holds. An analy­sis of the data in the PLIC’s first four reports conducted by San Thein et al. (2017) indicate that the PLIC investigated only 866 cases involving 467,747 acres, with a majority of t­ hese in or near urban areas (see ­table 2.1 for a breakdown by category). However, it is likely that the commission investigated only 283,638 acres involving 186 cases, b ­ ecause all cases involving the military ­were referred back to the military and followed a

52  Chapter 2 ­ able 2.1.  Breakdown of land confiscation cases scrutinized by the Parliamentary Land T Investigation Commission Report 1

Report 2

Report 3

Report 4

Land confiscation attributed to . . . ​

Military

Urban development industrialization proj­ects

Transport infrastructure, state factories, agriculture proj­ects

Urbanization proj­ects, transport, state factories, agriculture

Number of cases scrutinized

565 (65%)

63 (7%)

117 (14%)

121 (14%)

Area of land scrutinized (acres)

247,077

109,634

94,693

16,343

Source: Data from San Thein et al. (2017), based on the PLIC’s first four reports.

pro­cess separate from the one used by the PLIC (San Thein et al. 2017). Aside from the PLIC reports showing that the military had the largest share of the land involved in t­ hese cases, at 247,077 acres (53 ­percent) across 565 cases (65 ­percent), ­there is no other publicly available information about t­hese cases.17 The rest of the land involved had been confiscated by private sector entities, government ministries, and individual officials. The average size of plots was 1,708 acres, ranging from 69,000 acres to less than an acre (San Thein et al. 2017). According to the PLIC’s reports, the commission concluded that the main reasons for the confiscations included (1) urban development expansion; (2) industrial zone development; (3) expansion of military cantonments; (4) national infrastructure proj­ects including railways, airports, and highways; (5) the setup of state factories; and (6) the development of agriculture and livestock enterprises (GOM 2014). The PLIC found that t­ hese cases ­v iolated the 1894 Land Acquisition Act in several ways: 1. Transparent and mutual negotiations for compensation w ­ ere not carried out between the parties responsible for the confiscation and farmers. 2. When payment was given, it was not at market value at the time of confiscation, and many signatures meant to show consent ­were faked. 3. ­There was insufficient evidence that land was taken for a public purpose. 4. Often land that was confiscated was not developed according to plan, but instead was leased again to new tenant farmers. 5. Land taken by the military surpassed the allowable amount prescribed by the structure and size of military battalions.

State’s Quest  53

In addition, the PLIC said that government departments demonstrated a lack of cooperation and even manipulated or hid evidence during the commission’s investigation. The PLIC recommended that (1) land above the required amount for military battalions be returned; (2) if land was not returned, compensation to the original farmers (not the tenant farmers to which the land was leased) should be made at current market rate; (3) authorities carry­ing out ­t hese land returns should document the procedures taken so that they would be transparent and follow the government’s own laws; and (4) despite the provision of article 37(a) of the Constitution that the state owns all the land and can take it “for good faith of the ­people and state,” the state should consider the welfare and basic needs of its citizens who are left landless. A ­ fter the completion of the PLIC’s report, the Central Committee for National Land Resources Management (“Central Committee”), chaired by Vice President Nyan Tun and tasked with coordinating land administration across eigh­teen ministries, issued guidance to all levels of government on how to ­handle returns. Given the inconsistencies and variations in the level of detail in the PLIC reports (San Thein et al., 2017), credible figures related to the total land returned to communities is difficult to come by. According to a retired officer from the Department of Agricultural Land Management and Statistics, the Central Committee reported that it had resolved 1,623 cases involving 406,718 acres, out of 1,778 cases involving 425,406 acres, by the end of the Thein Sein government’s term.18 This included 231,419 acres of agricultural land and 175,299 acres of nonagricultural land. Land was ­either returned to communities, when previous o ­ wners could be identified; returned to the concerned department, when no previous o ­ wners could be identified (for example, forest land was returned to the Forest Department); or returned as land reserved for the state’s use with the approval of the cabinet. It is not clear how much land was returned to communities, but anecdotal reports indicate that it was less than what was officially claimed. In January 2015, when the deputy minister for home affairs, who also served as the secretary of the Central Committee, gave an update on the return pro­cess, PLIC Chair Tin Htut commented, “The Deputy Minister said more than 310,000 acres of land had been given back to their former o ­ wners. But in the real world, ­t here are a lot of ­people who ­haven’t gotten their land back.”19 Similarly, civil society challenged the government’s claims. A member of the 88 Generation’s Agriculture and Farmers Affairs Committee said: From what we have learned, some of the land was not returned to the rightful ­owners but handed over to tenant farmers who had been working

54  Chapter 2

t­ hose lands in recent years, leading to further disputes between the original ­owners and tenant farmers. . . . ​­There are also cases of local government officials knowingly handing over land to p ­ eople who are close to them instead of the original ­owners.20

Exploiting Gaps in the System Despite high-­level mandates, the Central Committee suffered from a lack of capacity and autonomy to carry out the Parliament’s recommendations. The reason is that, while government administration is “most concentrated and condensed in the core of the state, [it depends] on a wide range of micro-­political practices dispersed throughout society” (Jessop 2007, 10). In addition, since state structures do not stand apart from the social forces that are exerted on them (Mitchell 1996), ­t hese structures can be subject to capture by elites who wish to maintain the status quo. The PLIC had to rely on the line ministries, from central down to village level, creating many gaps in enforcement. The result was that much of this land was captured by interest groups intent on retaining resources for themselves or that land was returned to the wrong ­people, given the multiple and often undocumented claimants to ­t hese plots, as explained in chapter 1. The lack of accountability was exacerbated by power­f ul General Administration Department (GAD) administrators who coordinated the land return pro­cess in each township. The lack of checks on the GAD’s power enabled vari­ous interests to retain or take returned land for themselves. This resulted in local administrators acting against the wishes of farmers, as demonstrated by a case in Kyaukgone village in the Ayeyarwady Region involving 513 acres and 94 ­house­holds. A ­ fter Ayer Yar Shwe Wah, the com­pany that had confiscated the land, returned it to its original ­owners, the village leader had already sold the land to new investors before the farmers could reclaim it. In February 2014, the township administrator told the Settlement and Land Rec­ords Department (SLRD) to bar ­t hese new investors from using the land on the ground that it was meant to be returned to the villa­gers. Soon ­after, the township administrator was switched out, and the new administrator sided with the companies.21 Although it is in the nature of states to seek to proj­ect a strong capacity to implement goals, the Myanmar state had ­little such capacity to speak of. Despite the GAD having developed a one-­hundred-­page instruction manual to guide this pro­cess, ­there was a g­ reat deal of confusion over roles and responsibilities. Land return committees w ­ ere formed in each state and region, reaching down to the village tract level. R ­ unning parallel to t­ hese committees was the Farmland Administrative Body, set up to implement the 2012 Farmland Law, including resolving conflicts that arose as farmers applied for land use certificates. Adding to the confusion, the members

State’s Quest  55

in both committees ­were often the same ­people at the township and village tract levels. A member of the PLIC who represented Yangon Region, U Aung Thein Lin, lamented that “it is weak local administrators who ­can’t put the laws to use.”22 Furthermore, ­because of power strug­gles between President Thein Sein and Lower House Speaker Shwe Mann, growing tensions between Parliament and government reduced cooperation between the two branches to resolve the prob­lem. “In the last few years, the government and Parliament went separate ways. The party could not unify,” said a USDP member of the Farmers Affairs Committee.23 This led the PLIC Chair Tin Htut to complain, “Companies and ministries are not cooperating with the members of Parliament investigating the complaints.”24 On the other hand, the PLIC’s work created opportunities for civil society to advocate for the return of ­t hese lands to communities. Namati, a foreign non-­ governmental organ­ization (NGO) that had provided ­legal aid to Myanmar farmers since 2013, worked with local CSOs to get fourteen thousand acres returned to eigh­teen hundred farmers across the regions of Ayeyarwady, Bago, Magway, Sagaing, and Shan State. In a review of Namati’s work, Pierce (2015) found that farmers received redress in a third of their cases. When compensation was given, the average amount was MMK (Myanmar kyat) 4.6 million per acre, and when land was returned, claimants received on average 60 ­percent of the land claimed. The pro­cess of getting this redress was long and laborious, lasting for a

Farmer u ­ nion strategizes the return of land from the Parliamentary Land Investigation Commission in Ayeyarwady Region in 2015. From author’s collection

56  Chapter 2

median of 185 days. Sometimes resolution of ­t hese cases, in which land was returned to communities, resulted in more disputes among community members. In the extreme, the same returned plot of land was claimed by up to six farmers in one case in Ayeyarwady Region. The NLD government came to power in March 2016, with widespread support for Suu Kyi as the party’s de facto leader. It immediately set lofty reform goals, including for agrarian reform. Its election manifesto envisioned the “development of a modern farming sector, the fair resolution of farmland disputes, the establishment of land tenure security, and transparency in line with laws and regulations regarding the protection and transfer of farmland” (NLD 2015). With the National Land Use Policy having just been a­ dopted by the Thein Sein government, one of the NLD government’s first priorities was to continue the pro­cess of land restitution ­under the Central Reinvestigation Committee on Confiscated Farmlands and Other Lands. One year a­ fter its formation, community representatives involved with the committee complained about numerous f­ actors that hindered pro­gress in restitution. Th ­ ese included lack of transparency of cases managed and resolved, inconsistency in procedures for ­handling cases across the country due to ambiguous guidance, in­effec­tive repre­sen­ta­tion by farmer members who tended to be local elites, a poor case documentation system, resource constraints, and duplication of efforts.25 At the same time, the NLD government started to act in late 2016 to repossess unused land that e­ arlier had been leased to concessionaires. A cumulative total of 2,091,543 ha (5,156,819 acres) of land was allocated from 1991 to October 2016, of which 75 ­percent was vacant, fallow, or virgin (VFV) land (San Thein et al. 2018). Only 15 ­percent of the VFV land allocated was cultivated. Part of the reclaimed land was redistributed to communities, mainly in lowland regions. Despite t­ hese initiatives, many communities did not meaningfully benefit from t­hese well-­intended policies. Assessments carried out in 2018 found that many of the recipients w ­ ere not able to use the land due to its poor quality, its inaccessibility, and their lack of access to financing.26 Many recipients leased or sold their plots ­after receiving them. Adding to the frustration about the NLD’s slow pro­gress in resolving land issues, the government in September 2018 promulgated an amended version of the 2012 VFV Land Management Law. While the threat did not come to pass, the law initially raised alarm by mandating all ­those using what the government considered to be VFV land to register by March 2019 or be criminally charged with trespassing on state land. In 2020, the 2012 Farmland Law was also amended. While the amendment includes minor improvements, such as recognition of shifting cultivation as a farming practice and removing the prohibition on l­egal proceedings against members of the Farmland Administrative Bodies, it makes some conditions

State’s Quest  57

worse for farmers (ERI 2020). The amendment creates a new criminal offence by overtly stating that anyone working on farmland without obtaining the requisite documentation could be charged and fined or imprisoned for up to two years. Unlike the amended VFV Land Management Law, which in princi­ple excludes customary land from its definition, the amended Farmland Law does not exclude customary land. By the end of 2020, ­legal protections for land remained weak for ethnic minority communities using customary land tenure systems.

National Land Use Policy The drafting of the NLUP—­a pro­cess in which I participated in 2014–2015—­like the PLIC, demonstrated that Myanmar’s transition years ­were characterized by a new po­liti­cal environment in which more civil society actors could partake in official politics to shape land institutions. In addition, the pro­cess used for the NLUP was dif­fer­ent from the way policymaking had been done u ­ nder prior regimes. Since 1962, policymaking in Myanmar had been conducted by a small group of se­nior generals. Policymaking continued to be centralized u ­ nder the Thein Sein government, and was largely led by the Office of the President and the president’s cabinet (Hook et al. 2015). The pro­cess of drafting the 2012 land laws was no exception. The director general–­SLRD in office at the time explained to me that soon ­after the adoption of the 2008 Constitution, the government, with the consent of se­nior generals, started drafting the 2012 land laws. This effort was led by members of the SLRD experienced with drafting ­earlier land laws, ­under the oversight of the then minister of irrigation and agriculture, U Htay Oo. In 2011, the first year of the new Parliament, U Htay Oo submitted the land laws to the Lower House Parliament, which discussed the laws with other ministries, including t­ hose for forestry, fisheries, planning, finance, mining, home affairs, and industry, and with the attorney general’s office. The former director general–­SLRD told me, “In passing the 2012 law, the p ­ eople a­ dopted this law through the parliament members who discussed and amended it. . . . ​At this time, civil society was not developed enough to engage in this pro­cess.”27 In August 2012, the same month that the Farmland and VFV land laws w ­ ere promulgated, the government formed the interministerial Land Use Allocation and Scrutiny Committee (“Scrutiny Committee”), with a secretariat in the Forest Department of the Ministry of Environmental Conservation and Forestry (MOECAF). The Scrutiny Committee was further advised by a Technical Advisory Group consisting of nongovernmental technocrats. Three Western donors agreed to provide financial and technical support, including the placement of a foreign ­lawyer into the Advisory Group. The president tasked the Scrutiny Committee

58  Chapter 2

with drafting a new land policy. For the first year, it strug­gled to make pro­gress on its mandate. The director general–­Forest Department explained: We ­were given the task by U Tin Naing Thein [a minister in the Office of the President]. . . . ​We only manage 25 ­percent of the land which is permanent forest. About 75 ­percent of the land is managed by the agriculture ministry. At the time, we d ­ idn’t know about land use policies. We contacted retired ­people on how to develop it. We sat together informally to develop a concept note. We considered that we should not forget CSOs ­because we have many prob­lems like land grabbing. . . . ​We wanted an all-­inclusive ­approach. . . . ​We did it transparently, not b ­ ehind closed doors.28 Near the end of the NLUP’s completion, the foreign ­lawyer who advised the drafting of the policy through its entire pro­cess recounted it to me.29 In 2013, the Scrutiny Committee was in the pro­cess of finalizing a road map for completing the NLUP. As part of this pro­cess, and with encouragement from the three donors, the secretariat and the Technical Advisory Group proposed to the Scrutiny Committee (1) the creation of issue-­specific working groups with expertise in topics including land management, gender, and ethnic affairs to draft the policy; and (2) the adoption of a multi-­stakeholder consultation pro­cess to improve upon the draft. By June 2014, a comprehensive fourth draft was submitted to the Office of the President for review, ­a fter which it directed the Scrutiny Committee to condense the text and to dilute the use of rights-­based language. The drafting team pruned the text of the policy and produced a much shorter version. This fifth draft was then circulated to the Office of the President and key ministers for final review in August 2014. During the two previous years, the Thein Sein government had been heavi­ly criticized for the passage of the 2012 Farmland Law and the VFV Land Management Law, while protests erupted around the country over unresolved land confiscation cases. Th ­ ese developments intensified pressure on the Scrutiny Committee to adopt the multi-­stakeholder consultation pro­cess recommended to them. In October 2014, the draft NLUP was released to the public for consultation. It was at this point that the president dissolved the Scrutiny Committee and established the Central Committee, mentioned e­ arlier, to finalize the draft policy. Thereafter, the government held three consultations at the Union and regional levels across Myanmar and called for written feedback on the draft. By February 2015, the government had received 909 written comments. The pro­cess facilitator, U Shwe Thein, recounted to me that although ­t here was a lack of experience in working in a consultative manner, reflected by inaccuracies in translations, an initially rushed pro­cess, and challenges to systematically

State’s Quest  59

responding to all comments received, the government tried to manage t­hese challenges. Most notably, the government logged, grouped, and analyzed each comment received on the policy. The government also provided written justifications for not including certain comments in the final draft. The group was instructed not to erase any comments received through the consultations but to find a way to integrate all points into the policy. If any conflicts of opinions arose, the team was advised to make judgments in support of smallholder farmers.30 The consultation pro­cess was extended u ­ ntil August  2015, with three more national-­level consultations. The NLUP was ­adopted in January 2016.

Pact-­Based Approach to Policymaking As the new quasi-­civilian government strove to strengthen its po­liti­cal legitimacy domestically and abroad, it extended an invitation to civil society representatives and foreign nongovernmental organ­izations to negotiate on the substance of the NLUP. In this sense, the drafting of the NLUP relied on a pact to redefine the rules of land governance. However, while members of the old regime ­were willing to negotiate away some of their former privileges to gain this legitimacy, they w ­ ere not willing to impose heavy costs on themselves or power­ful allies. Therefore, t­ hose invited to the discussion t­ able had to be perceived as being technically and po­liti­cally beneficial to the government. They included civil society actors, former government officers, l­awyers, and other local and foreign experts, many of whom assessed and articulated the views of rural communities at the national-­level forums. U Shwe Thein, the main facilitator of this pro­cess, said, “This way of working w ­ ill only continue if the government feels that they are getting something out of it.”31 ­Those who ­were not invited expressed frustration at what was perceived to be selective exclusion of t­ hose who might subject the government to more intense criticism. A l­awyer representing farmers in land conflicts complained that “the government only invited t­ hose groups that they can control and get agreement from.”32 Juxtaposed against the national agitation around land conflicts (described near the end of this chapter) and the parallel investigation pro­cess conducted by the PLIC, the constructiveness of the consultation pro­cess incentivized the Thein Sein government to continue participating in this new culture of debate. As a result, the consultation was extended ten months longer than initially planned, to mid-2015. At the third expert roundtable in July 2015, the minister of MOECAF said: I would like to highlight the fact that Central Committee put the emphasis on reflecting the recommendations of the p ­ eople made at the public consultation workshops in making the sixth draft, and both the international and national experts also did their best in so d ­ oing.33

60  Chapter 2

The government indicated awareness of the role of land conflicts in hampering social stability and the country’s development. The minister of MOECAF, on behalf of the vice president, said: Since the population is growing over time, only with the proper management of l­imited land resources w ­ ill ­t here be a harmonized execution of programs for provision of basic needs of the ­people, improvement of their socioeconomic conditions and development of the state. Land use conflicts between the state, public and investors, encroachments, controversial tenure rights and un­regu­la­ted land leases are quite common ­these days ­because of the lack of a proper Land Use Policy.34 State reformers also demonstrated openness to the demand that the state fulfill its social protection role. At the first expert roundtable in January 2015, the director general–­Forest Department said, “Many p ­ eople break the law b ­ ecause they ­don’t know the laws. We ­can’t just take action against them. We must also help them rehabilitate their livelihoods.”35 Similarly, on the question of landlessness, a GAD director at the second consultation said: Many p ­ eople have lost their land and we must find a way to return it to the original ­owners so that they can have a livelihood. . . . ​The 1953 law [Land Nationalization Act] attempted to return land to the tillers from the Indians and the Chinese—so this is not the first time.36 Regarding the land of ethnic minority groups, government officials started to acknowledge the need to recognize land held ­under customary tenure ­after the president began to publicly speak about federalism in 2015 in the context of the peace pro­cess. As a result, article 62 was included in the final draft of the NLUP: Customary land use tenure systems ­shall be recognized in the National Land Law in order to ensure awareness, compliance and application of traditional land use practices of ethnic nationalities, formal recognition of customary land use rights, protection of t­ hese rights and application of readily available impartial dispute resolution mechanisms. ­There ­were also calls for the government to more strongly regulate concessions that ­were undeveloped for long periods. A former SLRD director at the second consultation said:

State’s Quest  61

The prob­lem is VFV land. Within twenty years, a lot of land was monopolized and speculated on—­making this a dangerous term. By definition, VFV is considered unused and unoccupied. This was used by the British in India to seize land for railroads. In real­ity, it could be agriculture or customary land. . . . ​Land disputes always occur on this land. . . . ​Most of the concessions have not been used. In fact, ­t here is land available for investment if only this unused land is taken back.37 The final version of the policy ­adopted in January  2016 contains specific provisions that address some of the long-­standing concerns about land in Myanmar, namely the needs for greater transparency in the land administration pro­cess, acknowl­edgment of land confiscations, recognition of customary land tenure systems, participatory land use planning, gender equity in land owner­ship, and better dispute resolution.

The Limits to Compromise The pact-­based approach to policymaking resulted in some concessions from po­ liti­cal elites, but civil society actors expressed concern about its shortcomings. Despite the rhe­toric of inclusion and openness, t­ here was a sense of unease among civil society representatives that the most impor­tant decisions would ultimately be made ­behind closed doors. In a telling statement, the minister of MOECAF, at the third consultation, said that the “government laid down the reform strategies for all the sectors in [sic] bottom-up approach”38—­indicating a mentality used to top-­down reform. Several times, t­here w ­ ere attempts to raise the issue of land grabs by the military, and each time, ­these ­were brushed aside by officials presiding over the consultations. A member of the 88 Generation, who was not invited to the consultations, complained, “­There is no mention of military land issues, the biggest driver of the prob­lem. ­There is no mechanism to address their land grabbing. . . . ​In par­tic­u­lar, we want to hold the military accountable, but it is difficult for several reasons.”39 Many ­were concerned that the consultation raised the public’s expectations and ultimately t­ hese would not be fulfilled. At the third consultation, in response to questions about how the policy would guide the national land law and streamline all land laws, a panel of officials warned that while this was meant to happen in princi­ple, making too many changes to the existing l­ egal framework might create chaos and instability. This response echoed an excuse long used by the former regime to maintain the status quo. A ­legal advisor to the pro­cess said, “The government does not want to clean up or simplify its confusing array of laws so that

62  Chapter 2

the elites can continue to use it to their advantage. The Burman center wants to rule the country the way it always has.” 40 As is discussed in greater detail in chapter 3, ethnic minorities criticized the land policy for failing to pay adequate attention to the ways in which the peace pro­cess was intertwined with questions of land access and control. Despite the policy recognizing customary land in princi­ple, ethnic minority representatives at the consultations expressed disappointment at the weakness of the protections. For example, the policy did not clarify that customary land would be designated as an official land use category, like agriculture or forest land.

“Disruptive” Politics While some members of society opted to engage with the government in a pro­cess of negotiation through the NLUP, ­others regarded the reforms with suspicion. This latter group employed what officials might consider to be disruptive tactics. However, t­hese approaches can often intentionally or inadvertently strengthen the position of groups using more compromising approaches (McAdam et al. 1996). Commenting on the need to rely on both official and disruptive approaches, a member of a local NGO involved with social movements seeking land justice commented: The government has two f­ aces: one face to show to the international community, another to show to us. We do not trust the government. However, we must have two strategies to influence the government: one to work with the government and another to pressure them.41 Reflecting an understanding of the “law of status society,” typical of Myanmar, ­those who used illegal tactics considered state authority to be wholly or largely illegitimate. As Prasse-­Freeman notes, “law only bends ­toward justice if ­there are ­people in the streets violating e­ arlier instantiations of it” (2015, 107; also see Rajagopal 2003). Th ­ ese strategies took the form of street demonstrations that ­were often carried out without official permission; “plowing protests,” in which farmers plowed land they deemed to have been unfairly confiscated; aggressive tactics including kidnapping; and even death in extreme cases, such as a farmer’s self-­immolation in Taunggyi to protest a military land confiscation. The decision-­making by civil society actors to employ such aggressive tactics was often not clear-­cut. One of them said, “It is challenging for para­legals ­because following the law takes time. Some ­can’t control their emotions, and they drop out to become activists.” 42

State’s Quest  63

A member of the 88 Generation Peace and Open Society supporting farmers in land confiscations expressed a similar ambivalence about l­ egal and illegal methods. He noted the need to use existing laws to protect farmers to the extent pos­ si­ble, but also the need to use means the state deemed “illegal” to draw attention to unjust laws. He said: The choice of strategy depends on the po­liti­cal situation of the country. What­ever the farmers want to do, we should not stop them, but we suggest they try to do it within the law. For example, if they want to do a protest, we inform them to get permission from the government. We also try to manage the farmers’ expectations that they ­will not get their land back with a demonstration, and that they need to take ­legal steps. But at the same time, 88 Generation has done many protests that have been illegal.43 A prominent land activist articulated a need to use illegal and disruptive methods to demand changes in official laws. He considered jail time as an opportunity to behave as a fully engaged citizen demanding one’s rights, but he was also of the view that farmers should be given options for engaging po­liti­cally. He explained to me: Sometimes, I ­w ill seek other ways if I see the laws are unjust. I have been charged with 30 violations, but I ­don’t avoid punishment. I violate the laws just to point out that the laws are unjust. . . . ​I am not such a big figure like Aung San Suu Kyi to advise farmers. My example might motivate other farmers to follow me. For example, in the demonstration against Wah Wah Win [a large com­pany engaged in a land dispute in Hlaingtharyar township in Yangon], we took three light trucks of farmers with us. Police w ­ ere waiting to arrest anyone who came off the truck. ­A fter two days, more farmers joined the demonstration. . . . ​Jail is only three months—it is worth it to have a chance to say what we believe. Instead of telling ­people what to do, setting an example is the best way. Now ­t here are increasingly more ­people willing to take to the streets. It is a new culture.44 ­ fter centuries of rule marked by domination without consent, Myanmar’s tranA sition was accompanied by efforts on the part of the new quasi-­civilian government to gain po­liti­cal legitimacy in the eyes of both the domestic and the international community. The convergence of government reformers seeking consent and a polity demanding greater accountability created more, albeit l­imited, official space for social actors to engage with state reformers to shape land institutions.

64  Chapter 2

This dynamic was observed through government efforts to restitute confiscated land. While the Parliament faced setbacks in its attempt to return confiscated land to rural communities, new formal channels became available for ­people to lodge complaints and to seek redress for land confiscation carried out u ­ nder the military regime. The politics also resulted in the emergence of a temporary pact in the NLUP drafting pro­cess. State reformers, particularly t­ hose in the Forest Department, who worked in collaboration with international donors and civil society actors expressed their appreciation for the technical assistance received through the consultation pro­cess. More open debates on land issues contributed to greater awareness among state and societal actors about several long-­standing land issues, as indicated by progressive language in the NLUP. However, as many groups continued to be suspicious of the sincerity of the Thein Sein government and, to a lesser extent, the NLD government ­towards reform, contentious politics also played a role in shaping land politics. Civil society organ­izations, some of which mobilized the anger of disaffected local communities, employed confrontational tactics in their demand for more substantive reforms. ­These methods often brought media attention and sometimes resulted in desired changes, for example by increasing pressure on state actors to respond to demands for justice. Other times, disruptive politics brought greater harm to rural communities, leading some CSOs to stop using and even to denounce ­these strategies. Research by NGOs found that methods such as plowing protests almost always resulted in farmers becoming worse off. While the protests w ­ ere attention-­grabbing, plowing protesters became more vulnerable when they ­were deprived of access to land or wage l­ abor as punishment for their activities. More interestingly, civil society advocacy through officially sanctioned channels juxtaposed against extremist tactics sometimes incentivized government reformers to adopt more progressive reform. To illustrate, the mass protests around the country in response to high profile land confiscation cases, such as the Letpadaung copper mine, pressured the PLIC to accelerate its efforts in land restitution and the Thein Sein government to open the NLUP to a lengthy and laborious pro­cess of public consultation. The opposing strategies used by civil society at times also led to desired outcomes for rural communities. For example, the 88 Generation network encouraged farmers to use antagonistic approaches to condemn unjust laws, while at the same time using certain ele­ments of the laws to secure their land claims.

C HA P T E R T H R E E

The Ethnic Politics of Land

The transition t­ owards peace, as marked by the national peace pro­cess, was one of three facets of Myanmar’s transition period and also directly impacted the country’s land politics. A ­ fter the fanfare of the national election that swept in a quasi-­civilian government in March 2011, President Thein Sein spoke at Chatham House in London in July 2013, in the first visit to the United Kingdom by a Myanmar head of state in more than twenty-­five years. He identified the transition to peace as being “perhaps [the] most impor­tant transformation.” He said: This must end. And it w ­ ill end. My government has been working tirelessly for peace. This too is not an easy t­ hing. The remaining conflicts all have an ethnic character and are rooted in long-­standing ethnic grievances and aspiration. . . . ​­There are issues of autonomy and self-­determination, of power sharing and resource sharing, of cultural rights and language policy, of protection against discrimination and security sector reform. . . . Very possibly, over the coming weeks, we w ­ ill have a nation-­wide ceasefire and the guns w ­ ill go ­silent everywhere in Myanmar for the very first time in over 60 years. . . . ​Difficult talks ­will follow and hard compromises ­w ill need to be made. But it must be done. For our peace pro­cess to be successful, it must be connected to the emergence of a more inclusive national identity.1 When President Thein Sein referred to “long-­standing ethnic grievances and aspirations,” he was mainly alluding to the national races or taingyintha, which are considered by the state to be indigenous to Myanmar. According to the 1982 Citizenship Law, in contrast to ­those who are denied citizenship, such as the Rohingya, or t­ hose granted associate or naturalized citizenship, such as Chinese and Indian residents, “nationals such as the Kachin, Kayah [Karenni], Karen, Chin, Burman, Mon, Arakanese, Shan and other taingyintha and ethnic groups who resided in an area of the state as their permanent home anterior to 1185 Myanmar Era or 1823 A.D. are Burmese citizens.”2 “Other ethnic groups” indicates smaller population groups 65

66  Chapter 3

such as the Pa-O and Da­nu who reside in Shan State, among many ­others around the country. Despite the distinction of being full citizens, the national races have not enjoyed full or equal rights since in­de­pen­dence in 1948. Setting aside the discussion about differences in rights accorded to the vari­ ous categories of citizenship, the politics of ethnic identity among the national races alone posed a formidable challenge to state and nation building in Myanmar during the last de­cade of transition. Most of the ethnic armed organ­izations (EAOs) and ethnic civil society organ­izations (CSOs)3 distrusted the sincerity of the government in sustaining peace, having seen how many of the sixteen bilateral ceasefire agreements signed from 1989 to 1995 broke down between EAOs and the military government. Burman-­centric policies further fueled the distrust among ethnic minorities. Thus, many ethnic minorities resisted joining a po­liti­ cal community regulated by a set of institutions that they believed would fail to reflect their interests or guarantee protection of their rights, including t­ hose governing land. This fear was heightened by the 2012 land laws, which increased the risk of dispossession for many ethnic communities that continued to use customary land tenure systems. A significant obstacle to forging a unified nation in Myanmar has been the per­ sis­tence of divisions rooted in ethnic identity, a situation perpetuated by the privileges granted to the Burman majority ­under state policies (Walton 2012b). While armed conflict may have initially been fueled by several sociopo­liti­cal issues, t­ hese issues increasingly became framed as ethnic in nature over de­cades of armed conflict (Smith 2007). The signing of the 2015 Nationwide Ceasefire Agreement (NCA) between the Myanmar government and eight EAOs, out of twenty-­one major groups invited by the government to sign, opened a channel for dialogue about a f­ uture federal arrangement and the way power would be shared between the majority and minority groups, including power over control of land and natu­ral resources. As the land and natu­ral resources advisor in 2018–2019 to the multi-­donor Joint Peace Fund, set up to support Myanmar’s peace pro­cess, I observed this dialogue pro­cess to be highly fractured. Ethnic armed and civil society actors w ­ ere divided among themselves and within their own organ­izations over the use of dif­ fer­ent strategies and discourses in their efforts to secure control of land and natu­ral resources. At the risk of oversimplification, it can be said that EAOs ­were divided, with variations and nuances among the dif­fer­ent organ­izations and within organ­izations, into two main camps with regard to the ceasefire pro­cess: ­t hose who persisted in armed strug­gle and t­ hose who engaged in po­liti­cal negotiations.4 EAOs that opted for negotiation operated within the official peace pro­cess to realize their vision of a federal demo­cratic u ­ nion. Thus, in order not to

Ethnic Politics  67

give legitimacy to the civilian government, they largely avoided engagement with the official legislative reforms. While ethnic civil society actors also supported that vision, they w ­ ere in general more amenable to working with the government to secure stronger statutory protection u ­ nder the government’s laws. Further complicating m ­ atters, no mechanism was put in place to translate high-­level agreements made through the peace pro­cess into legislative reform, causing a significant level of disconnect between the two pro­cesses. The differences in how ethnic groups framed their claims to land created additional layers of complexity in the national debate about land rights. In this regard, two notable discursive strands emerged. One strand centered on the values of customary land systems, juxtaposed against the purely economic value ascribed to the private property system formalized by the 2012 land laws. Another strand promoted the concept of distinct nationhood advanced by ethnic minorities in their demands for power sharing, which contrasted with a more recent rhetorical framing centered on the idea of indigeneity. This chapter looks at how the transition to peace, the second dimension of the country’s larger political-­economic transition, created openings to address ethnic minorities’ long-­held grievances t­ owards state policies that they experienced as incursions into their territory. The chapter first situates the ethnic politics of land in the country’s ­earlier attempts to establish a federal ­union. While it is impor­ tant to bear in mind that EAOs do not represent the full range of interests of all ethnic minorities, this chapter’s focus on the country’s transition ­towards peace treats the 2015 NCA as a catalyst for expanding the po­liti­cal space to advance ethnic minorities’ concerns over land. The chapter then elaborates on the positions of and strategies employed by dif­fer­ent ethnic minority actors, armed and non-­ armed, in the strug­gle for control over their ancestral lands.

Roots of Federalism In the precolonial era, ethnic identity was not as fixed as it l­ater became u ­ nder British rule. Gravers (1999) argued that identity was ­shaped more by where in the hierarchy one was in relation to the ruling dynasty and ­whether one was Buddhist. It was u ­ nder colonial rule that “ethnic categories [took] on a life of their own, shaping the po­liti­cal thought and be­hav­ior of central and regional elites” (Taylor 1982, 8). This was largely due to the British having separate administration systems for the lowland areas, where the Burman majority lived, and the uplands, or “Frontier Areas,” populated by ethnic minorities. This prevented the development of a pan-­Burmese identity, while certain colonial practices concretized the divisions

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between dif­fer­ent ethnic identities (South 2008). One such practice was for the British to recruit their troops predominantly from ethnic minority groups to put down anti-­colonialist revolts, most of them led by Burman nationalists. Of the regular armed forces at the start of World War II in 1939, only 12.3 ­percent w ­ ere Burmans (Mon and Shan included), who constituted 75.11 ­percent of the population; the majority of the armed forces hailed from the Karen, Chin, and Kachin tribes (Selth 1986, 489). Si­mul­ta­neously, the Burma In­de­pen­dence Army promoted a Burman form of nationalism, encapsulated in its man­tra “one voice, one blood, one nation” (Taylor 1987, 284). One month a­ fter the signing of the Aung San-­Attlee Agreement on January 27, 1947, which paved the way for the country’s in­de­pen­dence, Aung San and ethnic leaders led by the Shan held the historic Panglong Conference. Aung San offered autonomy to the Shan, Chin, and Kachin, who were part of the separately managed “scheduled areas,” in exchange for their ac­cep­tance of the Union of Burma. The Karen were barely represented as most of the population lived in Ministerial Burma or Burma Proper (Gravers 2015).5 The Arakan and Mon, who ­were considered part of Ministerial Burma, as well as smaller ethnic groups, ­were not invited (South 2008). The uneven outcome of negotiations among the groups was reflected in the 1947 Constitution, which granted some groups greater degrees of autonomy than o ­ thers (Silverstein 1980). Soon a­ fter in­de­pen­dence on January 4, 1948, members of the Karen, Karenni, Mon, Kachin, Shan, Arakan, and other smaller ethnic groups, as well as the Communist Party of Burma, took up arms to resist being subsumed u ­ nder the Union of Burma. In response to insurgencies that crippled the country, then Prime Minister U Nu asked General Ne Win to establish a “caretaker government” in 1958. The reins of power w ­ ere handed back ­after an election in 1960 in which U Nu won reelection and parliamentary government was restored. Soon a­ fter, U Nu made Buddhism the state religion in 1961; this lasted only briefly, u ­ ntil the coup the next year, but further alienated more ethnic groups that practiced other faiths, including the Kachin who took up arms that same year (South 2008). Wanting to shore up support from ethnic minorities, U Nu agreed to convene a meeting with leaders from the Federalist Movement, led by the first president of the Union of Burma, Sao Shwe Thaik, to discuss their proposal to form a federal system of government that would consist of eight states, with one for the majority Burmans (Smith 1999). Alarmed at the possibility that this could further fragment the ­union, General Ne Win carried out a coup on March 2, 1962, which ushered Myanmar into five de­cades of military rule, ­until 2011. The Union Revolutionary Council headed by General Ne Win soon issued a treatise titled “The Burmese Way to Socialism,” in which it announced Burma’s

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version of the socialist state. To usher in socialism, it created a one-­party system through the establishment of the Burma Socialist Program Party (BSPP), while banning competing po­liti­cal entities such as l­ abor u ­ nions and peasant associations (Nakanishi 2013). To create a planned economy, the council also did not permit private businesses, foreign capital, or landowners (Nakanishi 2013). The adoption of the 1974 Constitution further institutionalized the council’s power, ­until September  1988, when anti-­government movements led to the toppling of Ne Win (Nakanishi 2013). With the onset of direct military rule, General Saw Maung suspended the 1974 Constitution and established authoritarian rule through the State Law and Order Restoration Council (SLORC) (1988–1997), which ­later changed its name to the State Peace and Development Council (SPDC) (1997–2011) ­u nder General Than Shwe. Nakanishi argues that, in ­doing so, “the SLORC abandoned the socialist cause and tried to establish its legitimacy by claiming that Burma was not ready for democracy; it needed a period of transition to build the foundation for democracy, and that could be realized only ­u nder the tatmadaw’s guidance” (2013, 11). In 1988, the government officially declared a market-­led economy, while further tightening its po­liti­cal grip with coercive means. In 1989, the SLORC initiated bilateral ceasefire negotiations led by its first secretary, Khin Nyunt, for reasons including the emergence of the 1988 anti-­ government movement as a new domestic threat; splits and weakening among minority group insurgents; and the need to undertake development in border areas as part of the official adoption of a market economy (Zaw Oo and Win Min 2007). Five de­cades of a military regime increasingly centralized control of the state. ­A fter the adoption of the 2008 Constitution and the 2010 election, the country ­adopted a federal u ­ nion in name. Although the 2008 Constitution created devolved local government structures called Development Affairs Organ­izations to carry out municipal functions and designated self-­administered areas for certain minorities, substantial power was not devolved for other areas of administration (Hook et al. 2015). U ­ nder the 2008 Constitution, the ministries with the most administrative power (Defense, Home Affairs, and Border Affairs) report to the military. The General Administration Department, a line department u ­ nder the Ministry of Home Affairs, monopolizes administration at e­ very level. Chief ministers are chosen by the president, and state-­level ministries report to union-­level ministers. Decentralized power is also ­limited in the five Self-­Administered Zones of the Da­nu, Palaung, Pa-O, Kokhang, and Naga, and the one Self-­Administered Division of the Wa (Jolliffe 2015), even though the highly militarized Wa have nearly full de facto control of their region. Schedule III of the constitution does not allow ­t hese groups, for example, to pass

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legislation for security, natu­ral resources management, or education. Power reverted to being centralized a­ fter the 2021 coup.

Ethnic Repre­sen­ta­tion in Formal Politics Since the 2010 election, ethnic minorities strengthened their call to amend the 2008 Constitution on the grounds that it does not allow the country to adopt a true federal democracy. The secretary of the New Mon State Party articulated a sentiment common to ethnic minorities. He said: “We do not accept a Burman state. We demand self-­determination u ­ nder federalism. We are not asking for handouts from the government, but demand what is ours.” 6 Likewise, a se­nior advisor to the Myanmar Peace Center, a government think tank that was created to support the ceasefire pro­cess u ­ nder the Thein Sein government, observed: If we combine all ethnic demands into one word, it is federalism. We need to redesign the ­whole country on this federal basis. . . . ​U Aung Min [former cabinet minister and chair of the Myanmar Peace Center] convinced the president that federalism is not a bad word: it would not mean separation of the u ­ nion. The president officially talked about it on a radio address.7 The 2010 election edged ethnic minorities slightly closer to their vision of federalism by allowing them to take up parliamentary seats and to make legislative changes with the aim of decentralizing power. While in­de­pen­dent observers considered the 2010 election to be neither ­free nor fair, the election results for ethnic-­ based parties showed improvement from the 1990 election, when the National League for Democracy (NLD) won by a landslide.8 Out of 659 seats in the combined upper and lower h ­ ouses of the Parliament, ethnic parties won 15 ­percent of the contested seats, while the Union Solidarity and Development Party (USDP) won 78.5 ­percent and the military retained its quota of 25 ­percent of the seats (TNI 2010, 2). On the other hand, ethnic parties fared much better in four out of seven state legislatures (Chin, Karen, Rakhine, and Shan), winning more than 25 ­percent of the seats to challenge the dominance of the USDP-­military bloc in each state. A few years l­ater, with the NLD’s entry in the 2015 election, ethnic po­liti­cal parties ­were not able to sustain their 2010 election wins. Only eleven ethnic po­ liti­cal parties ­were able to win any seats at all, representing 11 percent of all contested seats.9 The NLD won 79 ­percent of contested seats in the union-­level Parliament and in most of the ethnic minority areas. This happened for several reasons, including the NLD’s brand familiarity, the ease with which its mass of supporters

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was able to campaign around the country, and the fragmentation of smaller and newer ethnic parties (Thawnghmung 2016). Despite this outcome, ethnic minority leaders expressed hope that the NLD would prove itself to be a party fully committed to federalism and shed Burman-­ centric policies that had been imposed by successive Burman leaders in the name of nation building. One month ­after the election, Suu Kyi met with ethnic parliamentarians and said that the country should be built on the spirit of Panglong. She said, “We need to work together . . . ​We should not work alone as this is a Union. By working together, we can successfully reach our goals.”10 Nevertheless, ethnic leaders worried that for the NLD government to build a federal ­union would be its greatest challenge11 and that the NLD would not be able to represent the interests of ethnic minorities.12 Though ethnic minorities w ­ ere included in the NLD government, ­there w ­ ere concerns that the top-­down nature of the party, in which key decisions rested with Suu Kyi, would limit del­e­ga­tion and decentralization of power. This was soon proven to be true as the NLD administration revealed its policies.

Ceasefire Opened Dialogue Concurrently, the multilateral ceasefire agreement signed in October 2015 between the out­going Thein Sein government and eight armed groups was a significant event for ethnic minority groups to advance their vision of power sharing. ­After signing several bilateral ceasefires with dif­fer­ent armed groups, the government announced the start of the nationwide ceasefire pro­cess on August 18, 2011. On February 12, 2015, Union Day, President Thein Sein made the first official declaration that the country was moving ­towards federalism.13 Fi­nally, on October 15, 2015, eight 14 out of twenty-­one invited armed groups signed the NCA. Signatories included the All Burma Students’ Demo­cratic Front (ABSDF); Arakan Liberation Party (ALP); Chin National Front (CNF); Demo­cratic Karen Benevolent Army (DKBA); Karen National Liberation Army–­Peace Council (KPC); Karen National Union (KNU); Pa-­O National Liberation Organ­ization (PNLO); and the Restoration Council of Shan State (RCSS), also known as Shan State Army–­South.15 One of the key NCA princi­ples is to establish a ­union based on the princi­ples of democracy and federalism in accordance with the outcomes of po­liti­cal dialogue and in the spirit of Panglong, that fully guarantees demo­cratic rights, national equality, and the right to self-­determination on the basis of liberty, equality and justice while upholding the princi­ples of non-­disintegration of the ­union,

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non-­disintegration of national solidarity and perpetuation of national sovereignty.16 Within thirty days of signing, a ceasefire monitoring plan was put in place, and the Union Peace Dialogue Joint Committee was created to guide its implementation. On December 15, 2015, four months before the NLD took control of the government, the NCA and its framework for po­liti­cal dialogue was ratified by Parliament. The Thein Sein government did not have a chance to implement this framework for peace before the NLD government took control in March 2016. Suu Kyi said that she would make the peace pro­cess a priority and appealed to all ethnic minorities to participate: “Ethnic ­peoples have already understood that we ­w ill have a lot to do to achieve a lasting peace in our country. . . . ​If all ethnic ­people participate, it ­w ill happen,” said Suu Kyi.17 The NCA indicated a degree of willingness by state reformers to give ethnic minorities a stake in the country’s ­future, while si­mul­ta­neously furthering the goal of state building. The NCA text states dual aims: the aim to recognize “the po­liti­cal aspirations ­behind the re­sis­tance movements of the Ethnic Armed Organ­izations and aim to strengthen the Union spirit.” The government also tacitly recognized the parallel administrative structures set up by EAOs over de­cades of civil war. Demonstrating a greater willingness on the part of the government to cooperate with EAOs in ser­vice delivery to local populations, chapter 6 of the NCA says: The Ethnic Armed Organ­izations that are signatories to this agreement have been responsible in their relevant capacities, for development and security in their respective areas. During the period of signing ceasefire and po­liti­cal dialogue, we ­shall carry out the following programs and proj­ ects in coordination with each other in said areas.18 Despite the agreement made between the government and EAOs to initiate a pro­cess of dialogue following the NCA, this pro­cess faced significant risks (TNI 2015b). First, Myanmar was still in the final stage of becoming a “disciplined flourishing democracy,” with the Tatmadaw holding the reins of power. Second, the rise of Buddhist nationalism and oppression of the stateless Rohingyas created a destabilizing force in a country meant to move ­towards greater inclusion. Third, the North-­South divide in the peace pro­cess weakened peace building. Some of the nation’s largest EAOs in the North, including the United Wa State Party (UWSP), Kachin In­de­pen­dence Organ­ization (KIO), and Shan State Pro­gress Party (SSPP), also known as Shan State Army–­North, ­were among the groups that

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refused to enter the NCA. Fourth, it was extremely difficult to create a unified position among the numerous stakeholders participating in negotiations with the government and military, including ten EAOs that signed the NCA, fifty-­six ethnic po­liti­cal parties, numerous pro-­democracy parties, and countless CSOs.

A Multiplicity of Ethnic Views At least for t­hose EAOs that signed on, the NCA and the ensuing dialogues indicated the state’s willingness to rely more on po­liti­cal rather than military means to address the “ethnic prob­lem” (Keenan 2013). However, skirmishes between the military and NCA signatory groups continued throughout the dialogue pro­cess, while the military waged open b ­ attle with EAOs that refused to partake in this pro­cess. This, plus the fact that the military was seen to be manipulating the negotiation pro­ cess, resulted in a huge loss of confidence on the part of ethnic minorities. In late 2018, the KNU and the RCSS, the signatory groups with the most sizable fighting forces, significantly reduced participation in the formal peace pro­cess in an effort to force the military to change the rules of engagement in the peace pro­cess.19 Nevertheless, EAO signatories to the NCA sought to use this opportunity to reshape institutions they believed to be at odds with their interests, including ­those governing land. Importantly, this contest was not ­limited to armed groups and military men, despite their centrality to the peace pro­cess. As EAOs do not fully represent their respective ethnic groups, ethnic civil society actively sought to broaden peace building debates to include the wider society. A Kachin civil society leader, Lahpai Seng Raw, said, “Peace requires the p ­ eople. It is a social state and cannot be developed by military men” (TNI 2015b, 18). While armed and unarmed ethnic minority actors coordinated to advance ethnic land rights, ­there ­were notable differences in the way they engaged with this issue. EAOs by and large believed that engagement with the reform pro­cess would weaken their ultimate objective of amending the constitution for the creation of a federal ­union. In other words, they wanted not piecemeal changes but a complete overhaul of the governance system u ­ nder a new constitution. In comparison, many ethnic civil society actors, compelled to provide immediate assistance to communities in need, often took a shorter-­term view of change. Thus, many of t­ hese actors ­were involved with a more incremental legislative reform pro­cess and played an active role in advocating that the central government protect ethnic minorities’ land. The next sections elaborate on the ways in which EAOs and ethnic civil society, together and separately, advocated for more inclusive land institutions.

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The L ­ egal Plurality of EAOs in Land Governance Using the peace pro­cess as the platform, EAOs took a strong stance in promoting recognition of ethnic minority groups’ traditional forms of land management. As further illustrated in chapters 6 and 7, customary land tenure systems are prevalent in ethnic upland areas, such as t­ hose populated by the Chin, Kachin, Karen, Karenni, Shan, and Naga, and where armed groups continue to maintain control of and, in some cases, administer territory. In t­ hese cases of parallel land governance, it can be said that the state is characterized by ­legal pluralism, in which ­t here is “more than one ­legal order, based on dif­fer­ent sources of ultimate validity and maintained by forms of organ­ization other than the state, within one po­ liti­cal organ­ization” (Benda-­Beckmann 2002, 37; also see Merry 1988). While state law reflects and upholds dominant power structures and is often positioned as morally superior to other forms of laws (Griffiths 1986), alternative l­ egal ­orders that draw their validity from non-­state actors or are sanctioned by local communities themselves can better support actors marginalized by state institutions to pursue their interests. At the time of the NCA’s signing, several EAOs w ­ ere administering land u ­ nder their own control. The KNU had the most advanced system, guided by a fully developed land policy. In addition, the KIO and the New Mon State Party (NMSP) issued land certificates in their areas of control but did not have an administrative system as comprehensive as that of the KNU. With support from technical advisors and input from civil society, the NMSP, the KIO, and the Karenni National ­People’s Party (KNPP) engaged in development of their own land policies. The Chin community also initiated discussions to revisit the applicability of the 1948 Chin Hills Act as a basis for creating their own land policy. Th ­ ese groups benefited from using the KNU Land Policy as a model. At our meeting, the Karen Agriculture Department (KAD) explained to me that the first version of the KNU Land Policy was a­ dopted in 1974 at the KNU’s ninth congress.20 It was based on ­earlier laws such as the 1867 Lower Burma Land and Revenue Act and the 1963 Disposal of Tenancies Law. Implementation of the policy continued ­u ntil 1993, when it was s­ topped ­after the fall of the KNU headquarters in Manerplaw to the Tatmadaw. The second version was drafted from 2004 to 2008 and ­adopted in 2009. Implementation was pi­loted ­u ntil 2012. The KAD further explained that ­because of weaknesses concerning the tax system, tracing owner­ship, and lack of a ­free prior and informed consent (FPIC) policy, the land policy was revised again in 2012 and ­adopted in 2013. This pro­ cess involved consultations with communities, technical experts, ­lawyers, and

Ethnic Politics  75

CSOs based in Kayin State and on the border. In 2015, the final version was ­adopted by the KNU’s Central Executive Committee and the Standing Committee, ­after which the policy was implemented by all departments. To implement it, a Land Committee consisting of all department staff and civil society representatives was formed at the central, district, and township levels. The policy consists of chapters that cover farmland, forests, w ­ ater resources, fishery, and other natu­ral resources. Saw Eh Klu Say, justice officer and a member of the KNU Standing Committee, said: The KNU is fully supporting it. . . . ​We try to inform downwards, from central to district to township levels. The KAD operates at all levels. KAD brings heads at district and township together to design work plans and to implement them together. The Information Department carries policies to the p ­ eople. They try their best to do it, but we have weaknesses to go everywhere to make p ­ eople know our policies. We go directly to the ­people, and they ask questions about our administration.21 On May 25, 2016, the KNU launched the 2015 version of the KNU Land Policy, with aims to raise the profile of customary land tenure, to emphasize the dif­ fer­ent values associated with it, and to advocate for a federal model of land governance. The joint-­secretary of the KNU, Padoh Mahn Mahn, said that the KNU wanted the “state governments to recognize the land owner­ship and land rights [documents] issued by ethnic armed organ­izations to the ­people.”22 He contrasted the KNU policy to the government’s land laws by pointing out that the KNU’s policy is a land policy—­not a land use policy—­and that ­people can outright own the land. At this workshop, Alex Htoo, a member of the KNU’s Central Land Committee, explained that the policy prioritizes recognition of customary land tenure, including land restitution to returning displaced populations. He said, “KNU is concerned with customary land. The first ­thing is to recognize and restore original owner­ship.” He emphasized that the KNU policy prioritizes equity in land access and control: “Land is becoming a commodity. ­Those with a lot of money w ­ ill accumulate a lot, taking it away from the poor.” He also stressed the need for the decentralization of land control to achieve sustainable peace: “We want to decentralize the land, to contribute to the peace pro­cess. It ­will help economic development and strengthen ecol­ogy.”23 The KNU Land Committee advised other ethnic groups in coming up with their own policies. The committee cautioned that to create a policy with wide

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ac­cep­tance, significant amounts of time, technical expertise, and consultation would be needed. Other ethnic groups showed ­great interest in this pro­cess. Sai Nyunt Lwin, general secretary of the Shan National League for Democracy (SNLD), welcomed the policy: In the past, ­t here was an idea that all the farmland, forestland and ­water belonged to the state. Now the KNU Land Policy paves the way that they belong to the p ­ eople. This is the right time to launch this policy since the issues are likely to be discussed as part of ongoing po­liti­cal dialogue.24 As land was one of six themes prioritized for discussion at the Union Peace ­Conference, the KNU Land Policy contributed to the thinking of other NCA signatories. This was impor­tant given that the other signatories did not have much direct experience administering territory, despite calling for a federal system of land governance to be put into place. At the second Union Peace Conference in May 2017, ten out of thirty-­seven princi­ples agreed to w ­ ere related to land and natu­ral resources, including the following princi­ple: “To aim t­ oward protecting and maintaining the natu­ral environment and preventing damage and destruction of lands that are social, cultural, historical heritage and trea­sured by ethnic nationals.”25 By this time, a working committee for land and natu­ral resources consisting of representatives from the NCA signatories had been formed to advance this vision, a group that I supported in 2018 and 2019 as the land advisor to the multi-­ donor Joint Peace Fund. While a positive development, this working committee, formed alongside ­others to address the themes of politics, security, economics, and social issues, faced numerous obstacles. First, participants lacked a common vision of what a “federal u ­ nion” should look like in practice, and specifically how this would translate into control of land and natu­ral resources between center and periphery. Second, given EAOs’ lack of technical preparedness for the negotiations, most arguments remained at the high po­liti­cal level—­making it difficult to translate po­liti­cal vision into concrete legislative changes. Third, given the artificial division between the reform pro­cess and the peace pro­cess, t­here w ­ ere no clear channels through which agreements made in the peace negotiations could be integrated into the concurrent legislative pro­cess, r­ unning the risk that the lawmaking pro­cess would deviate further from the federal vision. Even more worrying and in direct ­counter to what was being advocated by EAOs, ­t here w ­ ere growing signs that the government utilized the ceasefire to further extend its control into territory once exclusively controlled by EAOs, as discussed in chapter 7.

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Ethnic Civil Society Advance Alternative Norms As EAOs w ­ ere caught up in the complexity of the peace pro­cess, ethnic civil society complemented ­t hose efforts by attempting to shift dominant norms associated with land as advanced by state policy. The remaking of formal institutions requires “the realignment of interests, norms and power,” and “opposition norms enable networks to coordinate action to resist ­either passively, through slow-­down or non-­compliance, or actively, in manifest defiance of formal rules” (Nee and Swedberg 2005, 798, 805). In the years before and a­ fter the signing of the NCA, ethnic civil society resisted the imposition of state law by emphasizing ethnic ­peoples’ distinctive historical, economic, social, and cultural relationship to territory. They argued that their norms had organically evolved through the generations in accordance with the ways that ethnic communities had owned and utilized their land. Their position echoed the central thesis of Ostrom’s (1990) seminal work Governing the Commons. She posited that to avoid inevitable overexploitation, “common pool resources” must be owned and governed collectively, not by a state or a corporation, but by resource users themselves, to ensure that exercise of owner­ship and control is aligned with direct knowledge on the ground. At a workshop on customary land tenure systems held in the capital of Naypyidaw in 2015, Athong Makury, a Naga ethnic civil society leader, said: Land is our culture, our past and our ­f uture survival, but the government is trying to impose laws that impact on this. Land is very much tied to peace. Ultimately, the land belongs to the p ­ eople. We have regulations that are passed down by oral history and every­one knows them. . . . ​­People have managed land like this for thousands of years. It w ­ ill take the government years to understand the local practices. The best way is to recognize customary tenure practices.26 ­After the completion of three rounds of consultations for the 2016 National Land Use Policy (NLUP), ethnic nationality representatives overall ­were concerned that the policy provided only weak protection to ethnic minority land. At the third NLUP consultation, an official asked, “What would happen to government control if ethnic minorities were given control of all customary lands?”27 The Settlement and Land Rec­ords Department (SLRD) director of Kayin State said that the government should recognize only t­ hose areas that villa­gers can r­ eally cultivate: It would be unrealistic for the government to title twenty thousand acres claimed by a village. Can they ­really farm it? Each ­house­hold can only farm

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five acres, and then they shift. They can shift between fifty acres comfortably while leaving each plot fallow for five years.28 On the other hand, b ­ ecause the policy was drafted at a time when debates over federalism became part of official policy debates, state reformers became more open to the idea of decentralizing land use control. The director general–­Forest Department said: It is very hard to define customary land. Shan ­people know very well about soil conservation and can plant the right species to preserve their land, even when it is fallow. So we made amendments to the policy. In India, indigenous ­people own the land and they have good practices. Centralization can be difficult. . . . ​Decentralization is better for land use management. That is my view, not the official view.29 During this time, ethnic CSOs conducted extensive research to inform and consolidate a common position based on a set of norms and a development vision distinct from that advanced by the state. “Our Customary Lands,” a study by the Ethnic Community Development Forum (ECDF 2016, 5), asserts: In ­today’s “modernization” discourse, tradition and customs are viewed by mainstream development actors as “out of date” practices that should be left ­behind for more mainstream development approaches. Meanwhile, a dif­fer­ent perspective is gaining support—­our “modern world” needs to learn from the wisdom of indigenous communities who have lived sustainably across multiple generations. This statement captures an idea at the center of the discursive framing deployed by ethnic co­a li­tions: that capitalism based on a private property model is not the only way to or­ga­nize the economy and is not the most suitable for Myanmar’s ethnic upland communities. The argument goes that customary land practices are more inclusive of the range of values prioritized by t­hese upland communities, including the need for subsistence, for strong social relations, and for connection to their place of origin. Therefore, it makes sense for communities themselves, and not state bureaucrats, to create appropriate governance systems. The ECDF (2016, 3) report elaborates on this idea: “Community members view the rules and regulations as their own, and therefore adhere to them much more closely than a set of regulations imposed upon them by outsiders.” The report also points out that an appropriate ­legal classification for this land does not even exist:

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The lack of a specific classification for customary lands would in practice mean that t­ hese lands would be administered by dif­fer­ent ministries, which would create bureaucratic obstacles to the customary practice of managing all community lands concurrently and holistically. (ECDF 2016, 10) Studies on Myanmar customary land demonstrate that, as opposed to the very individualized approach to private property in state law, customary lands are conceptualized on the princi­ples of collective stewardship (Erni 2021; RRtIP 2019; EPLNR 2016; FSWG 2011). As such, many ethnic communities believe that the land and its resources cannot in fact be owned by p ­ eople. As stewards to the land, they enforce rules to protect nature and to prevent ­people from taking more than what is needed, including a ban on selling land to community outsiders. ­These studies also show that customary land practices have strong re­spect for nature, backed by intricate rules for regulating access to resources including food, ­water, shelter, and medicine. Communities collectively plan their resource use through an intricate system of land use zones. Rules are passed down orally from one generation to the next and help communities to be self-­sustaining. In many customary land tenure systems, it is believed that violations of rules ­will bring bad luck to the wrongdoer. Rules are arbitrated and enforced by village committees,

A plot in a shifting cultivation field that was left to regenerate. From author’s collection

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but in some cases, conflicting parties may choose to take their grievances to state courts. Despite this narrative put forth to challenge state law and to reclaim control of territory, many ethnic minority areas continued to see a rush of land-­intensive investments intent on exploiting their rich natu­ral resources during the transition period. Given t­ hese threats, many civil society actors w ­ ere pressured to engage with the government’s legislative pro­cess to secure recognition of customary tenure systems. As part of t­ hese efforts, CSOs used participatory mapping to delineate land bound­aries and map land uses within dif­fer­ent customary tenure systems, with the support of initiatives such as the Mekong Region Land Governance program created by donor agencies to support communities in the region to secure their land tenure (Mark et al. 2021; Allaverdian et al. 2017).

Nationhood versus Indigeneity While not always strictly the case in practice, as some ethnic groups use both ideas, another area of friction among ethnic minority groups centers on the debate between rights based on the claim to distinct nationhood versus rights based on the concept of indigeneity. Groups that claim rights based on distinct nationhood view themselves as having equal standing to the Burman majority and as having contributed to the founding of the Union of Burma. ­These groups conceive of themselves as having been distinct nations with defined territory that gave up part of their sovereignty in exchange for participating as equal parties in the construction of the modern state. However, b ­ ecause many of the smaller ethnic groups w ­ ere not invited to the historic Panglong Conference in 1947 and to this day are officially categorized as subgroups of the eight “national races” as named in the constitution, they have not been able to employ the language of nationhood as convincingly as ­others. In the larger debate on framing ethnic identity, some of the smaller groups adopt the language of indigeneity, which emphasizes the concept of a group’s original belonging to a place and the rights associated with that, as recognized in the United Nations Declaration on the Rights of Indigenous ­Peoples (UNDRIP), adopted by the General Assembly in 2007. The UNDRIP elaborates on collective rights, including the right to self-­determination; rights to lands, territories, and resources; and cultural rights. The declaration mandates states to legally recognize and protect indigenous ­people’s lands, territories, and resources. The concept of indigeneity added additional layers of complexity to the national debate about ethnic rights. Ethnic minorities who avoid using the term “indigenous” do so b ­ ecause they think it holds negative connotations. ­Because international law places the responsibility to guarantee the rights of indigenous p ­ eople squarely on the central gov-

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ernment, some worry that this emphasis legitimizes the powers of the state, while diminishing ethnic minorities’ historical claims to sovereignty. Dr. Sui Khar, the Myanmar representative for the Asian Indigenous ­Peoples Pact and the secretarygeneral of the Chin National Front, said, “They think they w ­ ill decrease their status if they identify with the term. They think that the ethnic groups that should enjoy sovereignty w ­ ill be diminished.”30 ­Others are concerned that the term conveys a sense of backwardness. One Arakan civil society leader said, “When I hear ‘indigenous,’ it is like I climbed out of a hole in the ground!”31 A second issue expressed about the indigeneity framing is that it could exclude minorities who hail from a par­tic­u­lar group but who may not have been raised or reside in the original locale. Th ­ ere is concern that ethnic p ­ eople based outside the ethnic states, including half the Chin population and two-­thirds of the Karen population, might be prevented from having a say about their respective ethnic group’s affairs. Some ethnic leaders point out that the focus on a common ethnicity, as opposed to location-­specific indigeneity, makes it easier to forge alliances among members of an ethnic group regardless of where they are physically based. Third, the government, even a­ fter voting in f­ avor of the UNDRIP in 2007, refused to make a distinction between the majority and minority groups in the country. Many ethnic minorities interpret the government’s unwillingness to distinguish between majority and minority groups ­under the UNDRIP as its refusal to recognize the structural inequalities that the latter have contended with since the founding of the country. At a workshop I moderated about the UN­ DRIP in Naypyidaw in February 2017, ethnic minorities argued that while it may be true that the Burman are indigenous, the minority have suffered from internal colonization by the majority, and therefore, legislation must be put in place to reverse ­earlier damages and to mitigate against f­ uture ones.32 Despite the challenges to the indigeneity discourse, it has gained a moderate degree of traction among ethnic minorities, particularly among groups that do not have robust po­liti­cal apparatus to legislate their rights—­for example, the Naga, as compared to the Kachin, Chin, Shan, Karen, Karenni, Mon, and Arakan, who have regional governments dominated by their ethnic groups. In a speech made on August 9, 2015, at only the second cele­bration of International Indigenous ­Peoples’ Day in Myanmar, Dr. Sui Khar said that provisions in the UNDRIP link with many of the EAOs’ demands, including rights to self-­government. He explained that the UNDRIP emphasizes “the first settlers who cultivated the land to make it livable, and upon which the culture, language, identity as it has been known to a ­people have developed.”33 Advocates of the indigeneity concept also point out that aside from the UNDRIP, ­t here are few domestic l­egal instruments in Myanmar that can be used by

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ethnic minorities to back up their claims. The 2008 Constitution, the 2016 NLUP, and the 2015 Ethnic Nationalities Protection Law34 use the terms “taingyintha” (national race) or “taingyintha lumuo” (ethnic nationality) to refer to indigenous groups. However, the term “taingyintha” took on an “unpre­ce­dented place in state lexicon” in 1964 when General Ne Win emphasized the unity among the taingyintha in a speech urging reconciliation between all national races, thereby fortifying the term’s meaning to include the Burman majority (Cheesman 2017, 465; also see Walton 2015). As such, and in contrast to the UNDRIP, domestic laws that do not distinguish between the ethnic majority and minority groups in their attribution of rights are watered down. To c­ ounter this, ethnic minority leaders created new terminology to distinguish themselves from the Burman majority, including “taneh taingyintha,” with “taneh” referring to a specific locality (Morton 2017). Since 2011, the Thein Sein government attempted to leave a legacy of peace. This paved the way to the partial signing of the NCA in 2015, which put ethnic politics at the center of state and nation building and opened space for armed and non-­armed ethnic minority groups to participate in the shaping of more inclusive institutions. This step was followed by a series of po­liti­cal dialogues, among whose themes land and natu­ral resources ­were prioritized. The peace pro­cess in the last de­cade was led by military men, and their visions of a ­future po­liti­cal settlement dominated much of the debate about power sharing. EAOs strug­gled to fully represent their respective ethnic groups. Thus, ethnic civil society sought to bring a greater diversity of voices to the negotiation ­table. This led to more collaboration between armed and unarmed ethnic minority actors. To c­ ounter the norms espoused by state land laws, t­ hese co­a li­tions mobilized around key messages to challenge the status quo. ­These messages sought to advance more power sharing over territorial control between the center and the periphery, including recognition of ethnic minorities’ land tenure systems and a set of noneconomic values associated to customary land. Ethnic co­a li­tion building was ­limited by disagreements over strategies to secure land claims. While many ethnic actors chose to be involved in the government’s policymaking pro­cess to integrate stronger protection of ethnic minority land rights into national laws, EAOs believed engagement and gradual decentralization would weaken their ultimate demand—to realize a federal u ­ nion. Significantly, many EAO signatories lacked in-­depth knowledge of the government’s l­egal framework. While communities faced threats to their land, EAO leaders who devoted their energy to the realization of a long-­term federal vision ­were often l­ imited in their ability to help local communities overcome the prob­

Ethnic Politics  83

lems created by land confiscation. Thus, even while the peace pro­cess created a formal space for ethnic minority groups to advocate for the control of their ancestral territory, the reality was that the government utilized the ceasefire to extend its control into some territories once exclusively controlled by EAOs. Perhaps even more of a concern was that the debates about federalism in the last de­cade w ­ ere equated with advancing the interests of ethnic minority groups. ­Because the Federalist Movement was initiated by ethnic minority leaders, this vision was largely not shared by the Burmans, many of whom do not see the relevance to their lives. Furthermore, few arguments w ­ ere put forth that convincingly made the case that federalism is not only an ethnic minority proj­ect, but also could be an improved governance model for all citizens. At the finalization of this book, this debate continues to be heatedly contested between the ethnic minority groups and the Burman majority, even as the stakes for unification grow exponentially higher, as this would contribute to a consolidation of strength within the opposition against the military regime that forcibly took power again in February 2021.

C HA P T E R F OU R

New Market Incentives Shape Norms

In the ­middle of the night on November 29, 2012, ­under the light of the full moon, security forces attacked six groups of protesters camped around the Letpadaung copper mine in Sagaing Region with tear gas, w ­ ater cannons, and flammable pellets. The attack resulted in the hospitalization of more than fifty p ­ eople, many of them monks who suffered severe burns. The images of such vio­lence authorized by the new quasi-­civilian government led to a national outcry. A member of Parliament representing Latha Township in the vicinity of the mine condemned the incident as being anathema to the princi­ples espoused by the new government: “I totally object to the w ­ hole incident. Their acts are contrary to demo­cratic practices. It is proof that t­here are still dictatorial acts and be­hav­ior from the past or the old system. ­Those responsible for cracking down the protest should apologize.”1 In response, the government created a commission headed by Suu Kyi to investigate and determine w ­ hether the proj­ect should continue. Occupying 7,868 acres of confiscated farmland across twenty-­six villages, the copper mine is a joint venture between Chinese military–­a ffiliated Norinco Group (North Industries Corporation), and the Union of Myanmar Economic Holding L ­ imited, a military conglomerate. The commission agreed to allow the proj­ect to continue a­ fter revising its terms, resulting in a greater revenue share for the government and increased compensation for the communities. The compensation package was revised to include USD 2 million annually to cover environmental costs during the production phase; 2  ­percent of net profits t­owards community initiatives;2 jobs or a monthly subsidy of up to USD 160 per person;3 and additional payment for lost farmland and crops. Despite room for improvement, Vicky Bowman, the director of the Myanmar Center for Responsible Business (MCRB), commented that Letpadaung was, at that time, one of the better managed mines in Myanmar.4 Regardless, the proj­ect continued to face challenges in its efforts to quell protests. According to a study carried out by the watchdog group the Myanmar Alliance for Transparency and Accountability (MATA), the proj­ect resulted in villa­gers becoming worse off in terms of income and food security.5 84

New Market  85

Reflecting on this proj­ect two years ­later in 2014, the director general for the Directorate for Investments and Com­pany Administration (DICA) said: The copper mine was approved thirty to forty years ago by the old regime. We cannot take back what we granted in the past. Our role is to prevent ­t hose kinds of prob­lems from happening again. Now we make sure of ­things before we go ahead. The Thilawa Special Economic Zone is a model for the government to replicate. The central committee for the national land use management is trying to take ­those standards and scale them up.6 The Letpadaung mine is a prime example of the type of investment promoted by the military regime. ­Under sanctions and in need of funds, the economy was kept afloat by significant foreign exchange earnings from investments made by neighboring countries, namely China and Thailand, which prioritized returns over rights, as they adhered to a policy of noninterference in Myanmar’s domestic affairs. China, through its “­going out” policy in the early 2000s, encouraged investors, mostly state-­owned enterprises (SOEs), to go abroad to look for resources. This contributed to an annual growth rate of 8.7 ­percent from 2000 ­until 2020, the highest in the world.7 Accompanying this trend, large-­scale land confiscations ­were carried out by Myanmar government ministries, the military and its business enterprise, and on behalf of investors well connected to the regime. The emergence of a quasi-­civilian government in 2011 was accompanied by a partial easing of sanctions and a gradual diversification of foreign investments. While only a small share of the total, total approved investments from Organisation for Economic Co-­operation and Development (OECD) countries averaged USD 1.7 billion from 1988 to 2011 but grew to USD 5.3 billion from 2012 to 2016.8 More impor­tant than the a­ ctual share of GDP was the timing of the return of foreign investments. The 2010 national election resulted in the election of opposition party members and the development of a more in­de­pen­dent Parliament—in other words, a more substantial bloc of state reformers. Wanting to overcome the economic stalemate left by the old regime and faced with the emergence of stronger social movements, ­t hese state reformers became more amenable to new investment norms that entered the country a­ fter 2010. During this period, new “fractions of capital” (Bieler and Morton 2014) s­ haped the regulatory infrastructure, while influencing the be­hav­ior of a subset of investors. The new quasi-­civilian government invited exiled technocrats to return and help foster economic growth. Reformist state and civil society actors pressured investors to comply with higher social and environmental standards. Meanwhile, the potential to conduct business with bigger pools of transnational capital

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incentivized some domestic firms to demonstrate higher corporate governance standards. This chapter explores how the transition to open markets, the third dimension of the country’s political-­economic transition, changed the investment environment and the way land concessions ­were regulated from 2011 to 2020. While land concessions had rarely been challenged before, they faced greater public scrutiny in this period. An officer of a com­pany known to have benefited u ­ nder the military government said, “Now ­people know the value of the land. ­There is social media, and they are better or­ga­nized.”9 The chapter starts off with a description of land concessions pre-transition, followed by an explanation of the politics of land concessions post-transition. The chapter continues with an analy­sis of ­whether key economic actors, including military conglomerates, Chinese SOEs, and large domestic investors, modified their be­hav­iors in the new operating environment that characterized the last de­cade. The chapter closes by describing the challenges faced by reformist state actors in effectuating deeper reforms.

Land Concessions Pre-Transition In 1988, a market economy was ­adopted by the State Law and Order Restoration Council (SLORC) to deal with the economic decline that resulted from de­cades of gross mismanagement. The military further consolidated ­t hese policies ­after the West imposed sanctions in 1990 and benefited themselves in the pro­cess. General Than Shwe, then supreme commander, had strong personal interests in promoting such policies. Nakanishi (2013, 307) argues that “he controlled the tatmadaw by rebuilding its vested interests in response to Myanmar’s transition to a market economy, thereby enabling his own position as dictator.” Se­nior military officers also had shares in the most profitable extractive businesses. The military formed two business conglomerations: the Myanmar Economic Corporation (MEC) in 1987 and the Union of Myanmar Economic Holdings ­Limited (UMEHL) in 1990. The MEC is considered to be the Tatmadaw’s most secretive business operation. SLORC Notification No. 4/97 said that the MEC was set up “in order to contribute t­ owards the development of the State economy, to decrease defense expenditure by fulfilling the needs of the Tatmadaw, to carry out the welfare of the Tatmadaw ser­v ice personnel and to implement other necessary ­matters for the Tatmadaw” (Maung Aung Myoe 2009, 182). The SLORC government permitted the MEC to engage with a wide range of sectors, including commodities trading and production, industry, construction, mining, telecommunications, transportation, energy, and services, such as banking and insurance. In comparison, UMEHL shares are held by the Directorate of Procurement at the

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Ministry of Defence, active and retired military personnel, and veterans organ­ izations. In 2007, UMEHL had thirty-­five fully owned companies, nine subsidiaries, and seven affiliated firms across a range of sectors including banking, tourism, real estate, transportation, and metals, as well as MMK 79,000 million of capital at its disposal (Maung Aung Myoe 2009, 176–77). Aside from ­these two conglomerates, t­here are also numerous businesses run by regional commands and individual officers across the country. Jones (2014) says that ­under “state-­mediated capitalism”—in which the military managed the country’s transition from a modified form of socialism—­favored domestic and foreign entrepreneurs ­were given trade licenses, land concessions, and joint venture deals with military conglomerates and SOEs. China and Thailand came to dominate foreign investment in this period. The SLORC also promoted the market economy by initiating ceasefire agreements with ethnic armed groups starting in 1989 (Zaw Oo and Win Min 2007). For example, in Kachin State, military and military-­aligned investors benefited from the seventeen-­year ceasefire period (1994–2011) when the military government divided and allocated portions of this resource-­rich area among themselves (Woods 2011). The military took land from communities on which it built military barracks and shooting ranges and conducted businesses (HURFOM 2013). As described in chapter 1, the military also allocated land for agribusiness ­under the 1991 Wasteland Instructions. Between FY 1988 and FY 2011, the extractive sector of the nation’s economy made up 68 ­percent of Myanmar’s total a­ ctual investments (Bissinger 2012, 32). The next section describes the main beneficiaries of the country ­under state-­ mediated capitalism, including the military, favored domestic firms, and Chinese investors. This section also describes the SLORC-­initiated policy of using agricultural concessions to generate export revenues, a driver of ­earlier waves of land confiscation.

Dominant Forms of Capital in the Military Era From 1988 to 2010, the military, including the Ministry of Defence, individual officers, and military conglomerates, enlarged its landholdings. Many extractive proj­ects had to be conducted as joint ventures with military-­owned enterprises, while the military as a defense unit and its high-­ranking officers took extensive land areas. A se­nior advisor to the Myanmar Peace Center commented: The battalions in that time took eight to ten times more than ­under previous governments. . . . ​The real prob­lem is ­because many commanders ­were greedy and partnered with elites to take over land. It was a brotherhood ­thing. All ­these transactions ­were done in exchange for ­favors. If the

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district chief got along with a commander, they could distribute land to their allies. . . . ​The private land transactions are very hard to deal with ­because they would need to go a­ fter thousands of officers.10 Maung Aung Myoe, an academic studying the military, identified three types of land confiscations by the military: 1. Essential plots: Sufficient land was allocated for new battalions to accommodate barracks, offices, storage space, and security perimeters. 2. Income-­generation plots: ­Until 2011, the military had an unwritten policy that ­every battalion had to take care of its own rank and file. Often, land was confiscated and rented to tenant farmers. 3. Individual confiscations: Higher-­level officers confiscated land for themselves or parceled it out to lower-­level officers. This land was difficult to return ­because the officers at times left and, in the pro­cess, handed the land over to o ­ thers.11 Although official figures are difficult to come by, the same academic estimated that the Ministry of Defence, UMEHL, and MEC together held 2.175 million acres of land as of March 2016.12 Businesses that w ­ ere closely allied with the military benefited from preferential treatment for their investments. Under the 1989 State-owned Economic Enterprises Act, these businesses were allowed to operate in sectors restricted to the state through joint ventures with or under license from the state—thereby creating the legal basis for cronyism. Over the years, they engaged in high-­profile conflicts with communities over many of ­these investments. Asia World Com­pany Ltd. was one such com­pany. It was founded in 1992 by Lo Hsing Han, known to have amassed wealth through the opium trade u ­ nder General Ne Win, who permitted this in exchange for the former’s loyalty in fighting insurgents in the north (Meehan 2011). Asia World has been one of the largest conglomerates engaged in real estate, oil and gas, hydropower, port management, and import-­export. It became notorious for having partnered with China Power Investment Corporation for the construction of the suspended Myitsone Dam, as well as other hydropower proj­ ects. Steven Law, the found­er’s son, and his wife are on the American Specially Designated Nationals (SDN) list for suspected links to the drug trade.13 The IGE Group of Companies was founded in 1994 by Nay Aung and Pyi Aung, sons of former minister of industry Aung Thaung, who served u ­ nder the State Peace and Development Council (SPDC) government. Through Pyi Aung’s marriage to the ­daughter of Se­nior General Maung Aye, the ­brothers secured ties

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to the military to amass fortunes.14 Registered in Singapore in 2011, IGE has been one of the top five conglomerates involved in several sectors including electricity, oil and gas, h ­ otel, import-­export, banking, and telecommunications.15 IGE Group was similarly a contracting party in three highly contentious hydropower proj­ ects along the Salween including the Hatgyi and Mong Ton Dams. The Mong Ton Dam was projected to impact an area stretching 870 miles in central Shan State, negatively affecting up to three hundred thousand ­people who had already experienced displacement from the armed conflict between the Tatmadaw and the Restoration Council of Shan State (RCSS) since the 1990s.16 Yet another such com­pany was Yuzana Company Ltd., established in 1994 by Htay Myint, who is also on the SDN list. Yuzana started off in fisheries but expanded to construction; real estate; supermarkets; and plantations for rubber, oil palm, teak, cassava, and sugarcane.17 The com­pany became infamous for its conflict with Kachin communities over its land concession of 270,000 acres in the Hukawng Valley in Kachin State. The com­pany was granted this area in 2006 by the military government to plant sugarcane and cassava. The concession displaced seven villages with five thousand farmers and destroyed forests and animal habitats within a tiger reserve.18 Military-­crony alliances greatly benefited from joint ventures with many foreign investors, particularly from China. Due to Myanmar’s proximity to China and the lack of competition created by the imposition of sanctions by the West ­until 2012, China became one of Myanmar’s most strategic economic partners in the region. Based on foreign direct investment data from 1989 to 2011, Bissinger found major increases in Chinese investments in this period. While a­ ctual investment from China in the 1990s amounted to USD 8.5 million or a mere 0.23 ­percent of all inflows, it ­rose to 60 ­percent of total inflows by FY 2008 (2012, 36).

Agribusiness: A Failed Policy for Growth The SLORC government promoted land concessions for agribusiness and “handled all exports of agricultural products, notably rice and teak, to acquire foreign currency for promoting industrialization of the domestic economy” (Nakanishi 2013, 128). However, land allocations w ­ ere carried out with scant regard to rural communities. ­After the passage of the Wasteland Instructions in 1991, the military government allocated vast tracts of land to favored domestic investors, w ­ hether they had the capacity and willingness or not, to grow cash crops for export, such as rice, sugarcane, cassava, soy, corn, rubber, and palm. An executive of a com­pany that benefited ­under the military regime said, “Before, you ­didn’t even have to bribe anyone to get the land. Sometimes the generals would say, ‘You want that piece of land; you can have it.’ L ­ ater on, you might need to go and give a gift.”19

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Based on 2017 data from the Department of Agricultural Land Management and Statistics (DALMS), it is estimated that the total amount of land granted from 1991 to October 2016 for large-­scale agricultural proj­ects was 5,156,819 acres or 3,875,964 acres if counting only vacant, fallow, and virgin (VFV) land. Of this, 70 ­percent was granted u ­ nder the military prior to 2011, including 43 ­percent (2,210,398 acres) by the previous Central Committee for VFV Land Management and 27 ­percent (1,372,175 acres) by military commanders. San Thein et al. (2018, 34) found that less than 15 ­percent of the VFV land allocated to companies was cultivated. ­After the ceasefires signed from 1989 to 1995, state entities, military enterprises and individuals, and domestic and foreign investors entered border areas to acquire land and other natu­ral resources (Talbott et al. 2016). The SPDC government co-­opted ethnic leaders by offering them opportunities to jointly exploit the country’s natu­ral resources. Rubber was prevalent in the northern states of Kachin and Shan, where Chinese investors often worked ­behind Burmese counter­parts (Woods 2011). In the south, guided by its thirty-­year plan, the government granted favored businesses land in Tanintharyi Region to develop seven hundred thousand acres for palm oil plantations. By 2013, about 1.9 million acres of land had been granted for palm oil production to four foreign and forty domestic companies, with some holdings spanning as much as one hundred thousand acres.20 While some companies welcomed the land concessions, o ­ thers w ­ ere pressured into developing them (Woods 2011). Since the areas w ­ ere remote, investors often had to build their own infrastructure. Many did not have the capital to carry out investments and relied on low-­cost government loans. Additionally, many companies used their land in other ways, including as a cover for logging or to lease to other investors, resulting in low domestic production of edible oils, estimated to meet only 40 ­percent of the country’s demand.21

Land Concessions Post-Transition ­ fter March 2011, the Myanmar state was left to deal with a legacy of poorly A regulated concessions that inflicted high costs on local communities. State reformers who feared that this jeopardized state legitimacy and hampered sustainable growth ­were incentivized to rein in capital through stronger regulation. This same period saw a return of transnational cap­i­tal­ist entities including companies and international financial institutions, such as the World Bank in 2012, which sought to introduce more stringent corporate governance standards. In response to the “pull” of new investments, as well as the “push” of public pressure, Myanmar’s reformist state forces sought to integrate international standards into their regulatory framework.

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The driver b ­ ehind this development has to do with the dynamic articulated by Bieler and Morton (2014, 42), who note that “the phenomenon now referred to as globalization therefore represents the transnational organ­ization of production relations which are internalized within states.” Although the return of a more diversified pool of capital did not fundamentally change Myanmar’s exploitative cap­i­tal­ist system, the market opening resulted in the introduction of new corporate norms. At the same time, the government made efforts to diversify its economy away from primary commodities to value-­added production and promoted more competition in sectors considered strategic to the country, such as telecommunications. For some domestic investors, the possibility of conducting business with bigger pools of transnational capital was a major incentive for them to signal their adoption of higher corporate governance standards. In an analy­sis of how crony businesses maneuvered in this period, Ford et al. (2015, 20) say that “the capacity of aspiring oligarchs to amass further material wealth [was] greatly dependent on overcoming barriers to foreign direct investment stemming from the pariah status of the former regime.” Indicative of this, this period saw an increased adoption of language about and practice based on the princi­ple of corporate social responsibility (CSR). On the other hand, new investment standards also threatened the dominance of traditional economic elites with the loss of market share. Some preferred to maintain their market advantage by continuing to exploit the state’s weak oversight capacity and ambiguous l­egal framework to avoid bearing the social and environmental costs exacted on communities. This, in turn, weakened state efforts to enforce new regulatory mea­sures.

The Pull of Transnational Capital A more diversified set of transnational capital actors returned to Myanmar ­after the lifting of most sanctions in 2012. Following this, the government increased interactions with international financial institutions, which, among other ­things, advised the government to create a private property land market. In May 2012, the International Monetary Fund advised, “The planned land reform provides a unique opportunity to grant land titles that can be used as collateral for borrowing, a key impediment for private bank lending to agriculture.”22 Regarding the developments, the International Crisis Group (ICG 2012, 6) notes that the rules had changed, and policy “decisions [­were] more likely to be made by technocrats.” ­These policy changes w ­ ere accompanied by greater competition from new foreign and domestic investors in several sectors, including in the energy sector and telecommunications. According to DICA’s statistics on approved investments,

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t­here w ­ ere notable increases in investments from countries that had ­earlier imposed sanctions. Although only a small share of the total, official data showed increases in investments from a more diversified group of OECD countries.23 Total approved investment from OECD countries averaged USD 1.7 billion from 1988 to 2011, but tripled to USD 5.3 billion from 2012 to 2016,24 much of it in manufacturing, telecommunications, and professional advisory ser­v ices. As opposed to the old way of d ­ oing business, clearer land owner­ship and conflict arbitration ­were issues around which businesses increasingly mobilized. Since the investment climate was characterized by social unrest, something that could stain companies’ reputations, many new, returning, and existing businesses became more cautious about their land acquisitions. At a seminar about land-­ based investments at which I spoke, held at the Union of Myanmar Federation of Chambers of Commerce and Industry (UMFCCI) on July 2, 2015, a foreign advisor to the Myanmar Business Forum presented issues faced by companies that source land for investments, including the absence of a land use register, outdated maps, and high transaction costs for business to verify land holdings. The advisor said, “It is in a business’s interest that government grants secure and clear land rights to p ­ eople. The business would not have to do the runaround trying to figure out who owns what. If land owner­ship is clear, it just has to pay for it.”25 Associations such as the British Chamber of Commerce brought firms together to discuss and find solutions to challenges concerning land acquisitions. Law firms representing companies seeking land for investments pressed the government for more ­legal clarity, simplicity, and support in ­handling complex land cases. A ­lawyer representing Western investors described a case involving a development proj­ect outside of Yangon in which adverse claims to land arose. The government asked the firm to stop the proj­ect u ­ ntil it could verify the claims. “The government has to address community concerns, while also trying to please foreign investors. In this case, they tried to buy themselves more time,” he explained.26 Many of the investment standards brought in by Western companies reflected an understanding by firm man­ag­ers that negative impacts to reputation could pose risks to their business. Apparel manufacturers such as Adidas and Gap trained their suppliers in ­labor, health, safety, and land acquisition standards with support from advisory groups such as Business for Social Responsibility. In preparing to set up fifteen factories in Myanmar, a representative of a Western apparel com­pany expressed concern to me about conflicts that might arise in the pro­cess of securing land for t­ hese factories. The com­pany considered a range of precautions, including hiring ­lawyers to document the paper trail of a par­tic­u ­lar plot, making on-­site verification visits, and consulting with communities prior to acquiring a plot of land. The com­pany’s corporate responsibility man­ag­er said,

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“We got burned by the media for sourcing cotton. . . . We take the land issue seriously.”27 ­Legal counsel for a telecommunications com­pany expressed a similar sentiment: We have many American shareholders and are sensitive to the SDN list. We currently have one thousand two hundred towers, and only about one hundred are leased from government. The rest are privately owned since it is simpler. We get our subcontractors to double check, as well as our in-­ house counsel. We must be 100 ­percent clear about an own­er’s claim to the land and they must have paperwork u ­ nder the existing laws. . . . ​If not clear, we ­don’t lease it.28 The MCRB made efforts to bring international standards into the domestic arena by facilitating discussions between the government, private sector, and civil society. At a workshop on the extractive industry in January 2015, oil and gas companies such as Total shared their guidance on the implementation of f­ ree, prior, informed consent (FPIC) and complaint mechanisms used to resolve land conflicts. ­These venues also provided an unpre­ce­dented opportunity for civil society to constructively discuss their concerns with the government and private sector. Reporting was used as a strategy to put pressure on companies to follow higher standards. In November 2014, the Business and ­Human Rights Resource Centre created a public database with information about the h ­ uman rights commitments of companies working in Myanmar. Out of 108 companies approached, 57 responded to a survey administered by the center. Among the respondents, 27 said they had ­human rights policies, while only 7 had conducted h ­ uman rights due diligence prior to investing in Myanmar. Notable responses came from Adidas and Coca-­Cola, which detailed not only their due diligence pro­cess prior to engagement, but also their ongoing efforts, and from Telenor, which cited a local system of reporting grievances related to sustainability issues.29 Similarly, sixty domestic companies participated in the MCRB’s 2014 Pwint Thit Sa survey, which ranked local companies on the strength of their corporate governance indicators related to h ­ uman rights, health, safety and environment, and anti-­ corruption.30 Annually ­until 2020, the last time this survey was conducted, the number of participating companies increased as they vied to move up on the list. Despite positive examples, many international and domestic investors continued to source land while neglecting social and environmental concerns. The Business and H ­ uman Rights Resource Centre found that international companies such as Shell and Chevron and h ­ otels such as Kempinski, Hilton, and Accor did not even have land acquisition policies for operating in Myanmar. In response to

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the survey, Accor said that the com­pany d ­ idn’t have a policy b ­ ecause it leased but did not own the land on which the com­pany’s ­hotels ­were built. And while it is important to recognize that different types of investments come with different obligations, and a single question might not capture the nuance, lead researcher said: The inability of most companies contacted to disclose their ­human rights commitments is worrying. Foreign companies are entering a country in transition where their responsibilities ­towards ­people and communities are extensive, and where enhanced h ­ uman rights due diligence and transparency are especially impor­tant for taking a leadership role and influencing local partners.31

Reformist State Efforts In setting up the country for engagement with a larger market economy, the Myanmar government made some drastic decisions in the early years of the transition. On September 30, 2011, only six months ­after President Thein Sein took office, and to the surprise of civil society inside the country and the Chinese government, he suspended the Myitsone Dam construction in Kachin State. A joint venture between the China Power Investment Corporation, the Burmese government’s Ministry of Electric Power, and Asia World Com­pany, the dam was expected to generate six thousand megawatts of electricity. This decision was unpre­ce­dented in that it was the first time the Myanmar government had de­cided to halt a major Chinese investment in response to protests from the public, who feared the dam’s potential downstream impacts on the Ayeyarwady River, the lifeline of the Burman heartland. At his first State of the Union address on June 19, 2012, President Thein Sein signaled the importance of maintaining a positive image for the country: Efforts are to be made for development of local and foreign investments in bringing about socio-­economic development of the p ­ eople and creating job opportunities while preventing what is detrimental to the interest of the State and the ­people, undermining the image of the State and sovereignty and harming natu­ral environment.32 Analysts speculated about the reasons the president made this decision and ventured that (1) this would have been a quick win for him to increase his popularity soon ­after taking office; (2) he wanted to reduce tensions in Kachin State from conflict that had resumed between the military and the Kachin In­de­pen­ dence Army in 2011 a­ fter de­cades of ceasefire; and (3) having been ostracized by the West for two de­cades, a move to demonstrate Myanmar’s autonomy from

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China would have strengthened rapprochement with the West (Kempel 2012). The government was likely aware that the economic relationship with China had become unfavorable to Myanmar. For example, from 1989 to 2011, China became the country’s largest investor, but nearly all Chinese investments w ­ ere in the extractive sectors of power, oil, gas, and mining (Bissinger 2012) and did not contribute to a diverse or sustainable form of economic development. The Myitsone decision set the tone for the h ­ andling of the Letpadaung copper mine one year l­ ater, in late 2012, as explained e­ arlier. At the same time, reformers saw the need to diversify the country’s economy, which was dominated by military, crony businesses, and a handful of investor countries. A top official at the Forest Department said: We need more international investors. They should compete to invest ­here, and the best should come h ­ ere. We d ­ on’t need to rely on the Chinese only. . . . ​Nowadays, we need ease of d ­ oing business. This is the most impor­ tant for international investors. This means ease of ­doing business for every­one, not just cronies and Chinese, but domestic businesses and all other investors. We need an even playing field.33 Reflecting a pacted transition in which the old regime made overtures to the opposition to redesign governing institutions, the government invited technicians to assist it in setting up new governance structures. At a national conference on poverty alleviation in May 2011, one of the president’s economic advisors, Dr. U Myint, presented the idea of an “in­de­pen­dent, non-­political, and ­legal institute of excellence . . . ​t he Myanmar Development Resource Institute (MDRI).”34 Following this, the government invited exiled, Western-­educated intellectuals, some of whom ­were former members of armed groups, to return and set up the MDRI. Working ­under the Ministry of Industry, the MDRI supported the government in adopting a new vision of economic development. The MDRI’s Center for Economic and Social Development was instrumental in creating the first development blueprint for Myanmar, Framework for Economic and Social Reforms, published in January 2013.35 According to the MDRI website, and as substantiated by my own interactions with the center’s staff, the institute assisted the government in economic reforms during this period, including bureaucratic streamlining, deregulation, trade liberalization, and tax reform to increase the state’s effectiveness in tax collection. Si­mul­ta­neously, international technical advisors supported the government in the drafting of several regulatory instruments; for example, the Asian Development Bank supported the drafting of environmental impact assessment (EIA) procedures (Tin Maung Than 2014).

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The government passed several impor­tant laws to strengthen safeguards on investments. Prominent among them was the 2012 Environmental Protection Law, with bylaws issued in July  2014. ­These bylaws include detailed procedures for conducting EIAs, with reference to International Finance Corporation standards for involuntary resettlement and for indigenous ­people. Indicating the influence of international norms, the director of the Policy Unit of the Environmental Conservation Department said, “We can learn many t­ hings from international experiences and take the most appropriate for Myanmar.”36 While the Environmental Conservation Department’s oversight was l­ imited, one of the first applications of the Environmental Protection Law involved seventy-­ two businesses in Mandalay’s Industrial Zone II. The l­ awyer for this case informed me that a local community filed a complaint ­under this law with the Mandalay regional government in 2015. The regional government mandated the companies to clean up the pollution in the nearby river within six months or risk having their licenses suspended. Each com­pany agreed to pay MMK 700,000 each year for continual maintenance of the river.37 The drafting of a new Myanmar Investment Law from 2014 to 2016 also demonstrated the government’s efforts to strike a balance between attracting capital and being accountable to the public. This new investment law was initially developed by DICA with the technical support of the International Finance Corporation to replace the Myanmar Citizens Investment Law of 2013 and the Foreign Investment Law of 2012. As with several other laws developed in this period, the draf­ters held public consultations in 2015. At t­ hese venues, I observed that criticism from civil society focused on the lack of social and environmental safeguards. In response to this criticism, DICA did away with ­earlier drafts and made a new version in which the language of safeguards was strengthened. Notably, the 2016 Investment Law embeds within it the 2015 EIA procedures, which in turn reference “international good practices (as accepted by international financial institutions including the World Bank Group and Asian Development Bank) on Involuntary Resettlement and Indigenous P ­ eoples” (MOECAF 2015).38

Status Quo or Signs of Reform? The impact that a stricter regulatory framework had on business showed mixed results. Some chose to adapt and rebrand themselves in response to transnational capital reentering Myanmar. Ford et al. (2015, 33) note, “The prospect of the rapid internationalization of the economy . . . ​created incentives for nascent oligarchs to begin to assert this relative autonomy and reposition themselves po­liti­cally in

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order to defend and/or extend their wealth,” especially in response to the impediment placed on them by the SDN list. Military and Chinese economic actors ­were also impacted by the larger reform context characterized by a more competitive investment climate. Some w ­ ere incentivized to change from business as usual, resulting in modest reparations to local communities for land confiscations in some cases. However, several ­factors ­limited the effectiveness of the government’s regulatory efforts. This section examines the mixed impact that the changing investment climate had on ­t hese major pools of capital.

Domestic Capital In the past few years, and particularly with the NLD coming to power, some domestic companies acknowledged changes in the business environment. “We have to change our mind set,” said U Chit Khine, the managing director of Eden Group, which dealt in construction, banking, and agribusiness. He added that he was not worried about the f­ uture, as he believed that the business elite would continue to have opportunities, even if they would no longer get any “special chances.”39 The International Crisis Group (ICG 2012) ventures that business re­sis­tance to reforms could have created a backlash from reformist authorities and civil society against the business elite. This incentivized some companies to find ways to distance themselves from the old regime and rebrand themselves. One such com­pany was Yoma Strategic Holdings Ltd., which is traded on the Singapore stock market, and part of the larger Yoma Group, a Myanmar conglomerate with investments in multiple sectors. In an interview conducted with Forbes in 2013, the founder Serge Pun, who according to the same interview had close ties with former military intelligence chief Khin Nyunt, described himself as a “principled businessman who says no to corruption and ­isn’t afraid to make enemies.” 40 Yoma has a set of CSR guidelines posted on the com­pany’s website, including a land acquisition policy that states its compliance with national and international guidance.41 With regard to this policy, one of the com­pany’s executives explained: “We developed the policy to let our staff know that we ­can’t just take land from ­people. We need care in h ­ andling this.” 42 Companies on the sanctions list ­were also incentivized to adopt or appear to be operating with stronger corporate governance. Commenting on this issue, an opinion writer stated in the New York Times: The American ambassador to Myanmar, Derek J. Mitchell, sees utility in maintaining some kind of continuing sanctions, especially during this difficult time of transition when the reform movement is threatened on so

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many fronts. But he frankly acknowledged to me that if the United States is ­going to keep ­people in Myanmar on such a list, it also ­ought to allow a clearly defined pro­cess for them to get off.43 To this end, individuals on the SDN list actively advocated for changes to the sanctions policy. The head of Max Myanmar Group of Companies publicly stated, “I hope the U.S. ­will consider lifting the targeted sanctions on Myanmar, particularly for t­hose who a­ ren’t involved in drug trafficking or arms trading.” 44 This thinking was shared by ­those advising Burmese companies on corporate governance. One foreign advisor to t­hese companies said, “­There are t­hose that want the crony companies to collapse and for the rich to give their money away to the poor. But that’s not realistic. . . . ​Is it better to be a prison guard or to facilitate reform?” 45 A domestic com­pany, which spoke on condition of anonymity, demonstrated how it adapted to Myanmar’s changing po­liti­cal environment a­ fter 2010.46 The com­pany was founded in the early 1990s and was involved in forestry, mining, transportation, construction, ­hotels and tourism, agribusiness, exports, and imports. In recent years, the com­pany conducted third-­party audits of its CSR programs. One of the com­pany’s executives told me that its corporate governance efforts w ­ ere driven by a desire to build a good reputation and to engage with a larger pool of capital: In Ngwe Saung, we did every­thing for them [the local community]—­built infrastructure, paid for lost land, but it ­wasn’t enough. They kept on coming back, and fi­nally, we have nothing e­ lse to say. So, we returned some of the land. . . . ​In the ­f uture for our expansion, we ­don’t want t­ hese complications g­oing ahead. Nowadays investors know they ­can’t ­settle ­these prob­lems in one month or even one year. . . . ​W hen we talk about good corporate governance, it means we can become a listed com­pany. We have a sea of global financial resources. To be listed, we must have good corporate governance. Then we have cheap financing. How can you say we w ­ ill become the underdog if we have this?47

Military Capital Even while the Myanmar government was transitioning to more civilian rule, the military continued to confiscate land from villa­gers and resist returning land it had taken in previous years. For example, one case in Ye Sauk Township in Shan State fueled suspicion ­towards the military’s intentions about reform. The military took as much as two thousand hectares (4,942 acres) of land from the sur-

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rounding area in the 1990s. Villa­gers alleged that the military granted land to six companies involved in ethanol and wine production.48 Villa­gers protested, including one farmer who set himself on fire in 2015. Right before this act, the sixty-­ three-­year-­old farmer wrote in red on the walls of a farm he lost: “Give back the lands that the Tatmadaw seized.” Despite this, the military made no amends but instead continued to intimidate villa­gers. “When I was giving the land rights training, the military sent personnel to watch, but I was surrounded by farmers, so they d ­ idn’t dare do anything,” the l­ awyer assisting the village told me.49 This conflict eventually resulted in a lawsuit filed by the Myanmar Defense Ser­v ices’ South-­Eastern Brigade on December 7, 2015, against twelve farmers for allegedly trespassing and vandalizing property. Given the very top-­down character of the military, higher levels of the military likely gave approval to local battalions to not return the land and bring criminal charges against the communities. Agreeing that this was likely what happened, a member of a military ­family explained to me, “If the chief of staff ­were to send a letter down to a battalion commander, ­t here is no room for misunderstanding. As soon as the battalion commander gets it, they must implement it.”50 The h ­ andling of the case cast doubts on the sincerity with which the military regarded land restitution. Similarly, many businesses believed that individuals in the military ­were given a ­free hand in land confiscations and military enterprises still had an unfair advantage. An executive of a national retail company expressed frustration about this: Land is hard to access ­because everywhere you go, someone owns the land, like a general or general’s son or ­daughter. It is all ­under individual names and they all take it. For this country to develop, we need infrastructure. We need to utilize the land. At this stage, nobody can utilize this land. Like white elephants that are so valuable, nobody can use it. . . . In the Ministry of Agriculture, ­there was a map of land holdings along Yangon-­Mandalay Expressway, according to se­niority, the highest general up to five hundred acres, col­o­nel level one hundred acres, and lower is twenty acres. It is getting worse now, their greed level is worse than before. . . . In the business sector, we want fair competition, but we ­can’t compete with UMEHL. They d ­ on’t have to invest in land, so how can we compete with someone who gets land for ­free. We just want to compete equally, so that the economy is healthy. Unhealthy competition equals unhealthy economy. ­There is no help to SMEs [small and medium enterprises], every­thing is so costly. They ­can’t grow. For bigger businesses, we have difficulties to expand. Creative ideas dis­appear b ­ ecause real­ity is so hard.51

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On the other hand, the military, headed by Min Aung Hlaing at the time, was forced by the changing environment to accept policies that led to economic losses for them. The ICG notes that “specific decisions [had] also been taken to try to level the economic playing field, and ­these [had] direct impact on the Tatmadaw’s business interests” (2014). One of the decisions that had the most immediate impacts on the UMEHL was the revoking of its tax-­free status.52 Prior to this, companies that ­were required to pay 10 ­percent export taxes avoided ­doing so by funneling their export activities through UMEHL, which in turn, took a 5 ­percent cut. The UMEHL also lost monopolies, including over the imports of edible oil and vehicles—­leading to significant drops in prices of t­ hese goods (ICG 2014). The chairman of the Thilawa Special Economic Zone (SEZ) Committee cited another example of how the MEC was forced to compete in a competitive bid for telecommunications, even though it tried to get a tender without ­doing so. “The President’s Office issued directives for a transparent and competitive pro­ cess. They cannot justify t­ hese old practices as they w ­ ill be severely criticized,” he 53 said. ­Because ­these military conglomerates ­were regarded as inefficient and poorly managed, they lost their e­ arlier position of being the preferred joint venture partner for foreign investors. To this point, Maung Aung Myoe explained that “Min Aung Hlaing wants to list UMEHL and have it funded with public shares.”54 In this context, the Letpadaung case was the first in which UMEHL was involved in giving compensation to communities. Due to the com­pany’s lack of experience, the pro­cess was fraught with complications. This was part of the national land restitution efforts detailed in chapter 2. The Parliament issued a report in 2013 recommending that the military return 297,127 acres of land involving 655 cases, out of a total of 474,000 acres involving 699 cases. The military’s share was 63 ­percent of the total land area and 94 ­percent of the cases filed.55 Maung Aung Myoe estimated that the military may have been holding nearly ten times the amount recommended for return or 2.175 million acres as of March 31, 2016.56 Although the Parliamentary Land Investigation Commission (PLIC) faced difficulties in getting confiscated land returned from the military, this pro­cess drew attention to the issue and put the military in the unpre­ ce­dented position of having to justify its decisions about taking land. On July 26, 2015, at the seventh regular session of the Union Parliament, Lieutenant General Wai Lwin, the Union minister of defense, responded to the Parliament’s report: In solving t­ hese prob­lems, it is necessary that our p ­ eople have a positive view on the Tatmadaw, the Armed Forces. . . . ​It m ­ ustn’t affect the defense and security duties as well as missions of our Tatmadaw. Therefore, we

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made a request to the president’s office to set the policies and princi­ples for us. . . . ​The three policies clearly set for us by the presidential office are: first, not to ask the rent of lands for cultivation from the civilians, and not to develop any partnership on the lands confiscated for building the military facilities; second, to mea­sure and occupy the minimum area that is ­really needed for the security and training requirements of troops and headquarters; and third, as ­t here are demands for the return of lands, the battalions should only take what they ­really need and return the extra lands to the original own­er.57 The minister said that the military analyzed all the cases and categorized them into four types, giving reasons for the existence of challenges in returning each of ­t hese types. The first type was land on which headquarters and barracks had already been built for defense purposes. The military de­cided to hold onto t­ hese lands. The minister said: To be frank, they [this type of land] are the ones which are difficult to return ­because headquarters are on ­these lands and buildings have long been built. . . . ​Based on the National Security Strategy, by considering our plans the typography of our country, potential t­ hings that can happen, the conditions of defense forces, where we should put our battalions, and which place is militarily and strategically impor­tant.58 The second type of land was related to Union government proj­ects, local government proj­ects, or individuals who no longer served in the military. The military did not consider ­t hese to be their concern. A third type was land that had been the location of headquarters but no longer was. The military was willing to return any excess not required for defense purposes. A fourth type was land on which the military shared farming profits with tenant farmers. The military was in the pro­cess of considering t­ hese lands for return. Of the land recommended to be returned, the military said 382 cases out of 655 cases had already been resolved as of 2015. Of ­t hese cases, the area of land it de­cided to give back totaled only 18,364 acres, a mere 6 ­percent of the amount that the PLIC had recommended should be returned. Most of the land returned was land confiscated for income-­generation activities ­because the Ministry of Defence in 2010 reversed its ­earlier policy of requiring local battalions to generate income for its soldiers. The minister explained: When the military confiscated the lands with the reason of farming and livestock, the purpose was to exploit the vacant lands and virgin lands

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without owner for the sake of the military units, and regional food ­security. . . . ​However, at the ground level, although some cleared the vacant and virgin lands, some just confiscated the well-­established farmlands and caused prob­lems. . . . ​If the lands ­were farmlands when confiscated, and the military do not grow anything on them, but leased the land to the farmers to cultivate, we w ­ ill give up the lands.59 However, it was difficult for the military to return the land to the original farmers b ­ ecause of a lack of official rec­ords and multiple claims to the same plots. The minister further explained: As the investigation commission [PLIC] faced difficulties, prob­lems and fatigue while analyzing and solving the lands cases, we also have limits when we recheck ­t hose cases. Therefore, ­t here have been some delays. The first reason is ­simple—we cannot find the rightful own­er.60 A case in the lowlands illustrated the difficulty in identifying the “right ­ wners.” 61 In 1996, the military took 470 acres for sugarcane from eight ­house­holds. o ­After that, the military rented it out to fifteen farming ­house­holds who paid MMK 20,000 per acre. When leaving in 2012, the military put up a sign saying that the land had been returned to its original o ­ wners. The original farmers applied for the land and received land use certificates (Form 7). The fifteen tenant farmer ­house­holds who had no tax receipts w ­ ere passed over. “We tried to apply for Form 7, but the village leader rejected us,” one lamented. Fi­nally, the minister expressed dismay at the military’s portrayal by critics. The minister said, “It is a shame that some used the expressions which w ­ ere not ­legal to use before and portrayed the Tatmadaw as the greedy ogres of Visali in the case of land confiscations.” The minister emphasized the need to uphold the military’s image as protector of the ­union: In conclusion, the fundamental duty of Tatmadaw, the military is to protect the nation with the arms. To protect the nation means protecting the lives, homes and properties of our ­p eople. Just like protecting with the arms, returning the lands to support p ­ eople to be stable and of farmers to have something to live on is a way of protecting the lives, homes and properties. I would like to express that we ­w ill solve the remaining cases, prioritizing the welfare of the p ­ eople.62 As part of larger reforms undertaken during the transition years, for the first time in the country’s history, the military was pressured to answer to its

A signboard declaring that the military had returned land to a village in 2014. From author’s collection

A ­lawyer mediates a conflict among farmers over land returned by the military in a lowland village, 2015. From author’s collection

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e­ arlier actions through a parliamentary pro­cess. However, some analysts cautioned against pushing too hard for changes. A se­nior advisor to the Myanmar Peace Center said: “If the new government can maintain the momentum, we have a chance. The four issues around the military bud­get, military business interests, ­human rights abuses and land grabbing—we can start tackling them now, but we cannot over-­politicize them.” 63

Chinese Capital Myanmar holds geopo­liti­cal significance for China’s ­Belt and Road Initiative (BRI), a global strategy launched in 2013 by President Xi Jinping with the aim of strengthening connectivity between China and the rest of the world. In the early transition years, China came to realize that it had underestimated the complexities in Myanmar stemming from the intractability of civil war, increased competition, and strong public distrust (TNI 2016). Th ­ ese f­ actors led some Chinese investors, particularly SOEs, to change the way they had traditionally engaged with stakeholders in the country. A distinct feature of China’s “­going out” strategy since the 2000s is that most Chinese companies that operate overseas are SOEs. In the ­earlier years of this phase, the Chinese government had low environmental standards for its overseas investments in comparison to Western companies and multilateral investment institutions (Munson and Zheng 2012; Mol 2011). But around 2010, in response to a host of investment-­related disputes between China and host countries and Beijing’s policy linking economic with po­liti­cal objectives, some Chinese state actors began to urge SOEs to adhere to host country laws. In Myanmar, the suspension of the Myitsone Dam sent a strong message to the Chinese government and its investors, forcing them to rethink their way of engagement. “The shock that came with the recent transition in Myanmar generated tremendous attention in this country. Recently, the Ministry of Commerce called a meeting with fifty to sixty SOEs specifically to discuss Myanmar,” said a foreign advisor working with the Chinese government on regulation of its overseas investments.64 Similarly, one day a­ fter the NLD government came to power, Wan Bao Com­pany released a ten-­minute public relations video called “A New Dawn” explaining why the Letpadaung copper mine proj­ect was suspended in 2012 and highlighting the need for social ac­cep­tance. Wan Bao’s deputy general man­ag­er said, “If we do not take social risk into account, if we ­don’t serve the local community well, and ensure stability, then without the support of local p ­ eople, no ­matter how much money we have, or how good our technology is, the proj­ect ­w ill not succeed.” 65

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To develop this soft power, China increased and diversified its engagement with a range of non-­state actors (Khin Kyaw Kyee 2018). China’s engagement took the form of charitable initiatives, cultural exchange programs, and media campaigns. Framed as developing party-­to-­party relations, the International Liaison Department of the Communist Party of China hosted dif­fer­ent po­liti­cal parties from Myanmar for educational, training, and exchange visits. To sway stakeholders that the Chinese government believed to be Western-­influenced, it hosted numerous civil society organ­izations ­under the auspices of the China-­Myanmar Friendship Association. Similarly, the Chinese government attempted to mitigate the anti-­Chinese sentiment often projected by the Myanmar press. Reflecting a growing awareness that the Chinese government had to change its policy ­towards its overseas investments, in November 2013, at the Third Plenary Session of the Eigh­teenth Central Committee of the Communist Party of China, party leaders discussed the need for corporations to actively adopt social and environmental standards.66 By 2013, thirty-­one regulations and guidelines had been issued by the Chinese government pertaining to Chinese overseas direct investment (UNDP 2015). Notably, the 2014 Guidelines for Social Responsibility in Outbound Mining Operations—­which was launched by the China Chamber of Commerce of Metals, Minerals and Chemicals Importers and Exporters (CCCMC), a member-­based entity with six thousand companies that invest overseas—­referred to international best practices for addressing the harm caused to local populations from land acquisitions. One of its guidelines states, “Minimize involuntary resettlements of p ­ eople residing in the mining area and com67 pensate fairly where inevitable.”  A staff member of Global Witness explained to me that Chinese companies, including SOEs, increasingly came u ­ nder pressure from vari­ous critics in the early 2000s for not managing their local relations well. ­There ­were multiple views about how Chinese overseas investments should look, which did not necessarily align, including the views of the Ministry of Commerce; state-­backed insurance companies; banks; and the diplomatic ser­v ice, which often had to manage diplomatic tensions arising from Chinese investments in host countries. As a result, the Ministry of Commerce, which selects economic counselors for overseas consulates, may deny approval for a loan from China’s Exim Bank if a com­pany does not conduct an EIA acceptable to a host government.68 “Just b ­ ecause they are voluntary does not mean that they are worthless. Th ­ ese guidelines must be echoed by domestic legislation,” the staff member added.69 In 2015, a foreign advisor to the Chinese government on investment regulations explained the obstacles to implementation. He said,

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At pre­sent most policies are non-­binding. Many companies overseas still ­don’t know about them. Many of ­t hese guidelines have been developed at the urging of external actors. Th ­ ere are dif­fer­ent feelings in the government with regard to how stringent to be with outbound companies, especially as China is facing an economic downturn. They ­don’t want to make regulations too strict, or companies ­w ill go ­under the radar, and already many private companies do. He further explained that while t­ here w ­ ere p ­ eople inside the agencies championing ­t hese, ­t here was insufficient institutional support to mainstream them.70 China’s ­handling of the Kyaukphyu SEZ in 2016 provides insights about the pressures the Chinese government faced during Myanmar’s transition period. Due to high insecurity in the region and ongoing criticism, the NLD government slowed down the pace of the proj­ect. Myanmar policymakers and civil society actors expressed mixed feelings ­towards the SEZ. While some members of the Arakan National Party and members of local monk associations welcomed the SEZ proj­ect with the expectation that it could bring jobs and local development, other stakeholders expressed wariness. A Rakhine State parliamentarian invited to China in 2016 to discuss investments was highly dissatisfied with the proj­ect. He said: Every­one knows that Rakhine State is geopo­liti­cally strategic for China. It is a direct route out to Bay of Bengal. . . . ​The railroad from Kyaukphyu to Yunnan and the deep-­sea port are the most impor­tant investments to China. . . . ​I ­haven’t seen any better practices in regard to foreign investments. They could say that ­t here is some kind of community investment in their investment operations. But we ­really feel that they are fake. Local ­people are the most marginalized regarding the benefits of any foreign investments.71 Faced with delays, the Chinese government and the China International Trust Investment Corporation (CITIC) began to engage with Myanmar stakeholders to discuss ways to improve relationships with communities and to minimize conflict. In early November 2016, a meeting was or­ga­nized u ­ nder the auspices of the United Nations Development Program (UNDP) in Beijing to bring together Chinese and Myanmar counter­parts for this purpose. Commenting on CITIC’s attitude, a meeting or­ga­nizer said, “Their vice president participated. His attitude was open, friendly, and respectful, indicating a willingness to work with NGOs [non-governmental organizations]. He said they want to do the best EIA and SIA

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[social impact assessment].”72 Citing the Japanese-­led Thilawa SEZ, CITIC man­ ag­ers remarked that Chinese companies should learn from international experiences in securing social license to operate in Myanmar (Mark and Zhang 2017). During the first half of Myanmar’s de­cade of transition, the evolving po­liti­cal context pressured China to modify its pattern of engagement with the country. As civil society became more assertive, as investors diversified, and as the Myanmar government strengthened its regulatory framework, the Chinese government and its SOEs responded by engaging with a wider range of stakeholders in an effort to secure social license to operate. Following the Rohingya crisis in 2017, the NLD government feared a drop in foreign investments and, once again, gravitated ­towards China’s orbit. The shift in government policy coincided with a spate of investment forums held around the country, many of them centered on the BRI. As of late 2021, 140 countries had memorandums of understanding with China ­under this initiative.73 However, Myanmar is considered by China to be one of the most strategic countries u ­ nder the framework. A Myanmar expert on China explained that “Myanmar is a huge missing link for BRI. China–­Pakistan Economic Corridor [CPEC] is for the western part of China, while China–­Myanmar Economic Corridor [CMEC] is for the southwest part of China” (Mark et al. 2020). In September 2018, the two governments signed a framework agreement to implement the BRI, centered on the seventeen-­ hundred-­ k ilometer CMEC, which starts in China’s Yunnan Province and traverses Myanmar’s major cities before reaching the Kyaukphyu SEZ. The resurgence of China’s prominence in Myanmar’s economy was marked by Xi Jinping’s visit to Myanmar in January 2020, the first visit by a Chinese head of state in nearly two de­cades, to cement the BRI.74 A Burmese civil society leader invited to comment on plans for implementing this framework informed me in early 2019 that the Chinese government planned to increase investments in infrastructure proj­ects, including transboundary grids, energy proj­ects, and agro-­ industry.75 He was concerned that the plan contained troubling language, which called for the Myanmar government to control its population from staging social demonstrations, so as not to disrupt investments. Si­mul­ta­neously, in an attempt to ward off potential drops in investment following the Rohingya crisis in late 2017, factions in the Myanmar government called for a relaxation of investment regulations. In early 2019, Suu Kyi appealed to the public to be “open-­minded” in considering not only the social and environmental merits of opposing the Myitsone Dam, but also the economic merits of implementing this type of proj­ect.76 This signaled potential setbacks to the land agenda advanced since 2011.

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Limits of Enforcement The strong public re­sis­tance against contentious investments raised awareness among state regulators that land-­based investments require a higher level of regulation. H ­ uman rights aside, many state regulators w ­ ere also concerned that a perception of Myanmar as a country with weak rule of law would deter desirable investments.77 However, reformist state actors continued to face challenges in enforcing ­these laws—­a theme of l­ imited state capacity that runs throughout the book. First, the ­legal framework is rife with ambiguity and contradictions. Foreign investments of a certain size and type had to go through the Myanmar Investment Commission (MIC). The MIC was not responsible for granting land approvals, but an investor had to secure approval for land before MIC approved of an investment. One MIC member expressed her concerns to me regarding complications over land acquisition: “We have land laws and regulations from dif­fer­ent departments, but ­t here is no link between them. One office might agree with a law, but another w ­ ill block it. We need to streamline the laws. We need to have a central repository of the laws.”78 Second, some investors took advantage of the country’s ­legal ambiguity in order to avoid paying for social and environmental costs. Before it was amended in 2018, article 25(b) of the 2012 VFV Land Management Law stated that farmers who have used VFV land for an established period, officially or not, could negotiate compensation with a third party attempting to claim that land. Instead, land confiscators tended to emphasize part (a) of the same article, which says that action can be taken against cultivators causing “dispute, obstruction, trespass and mischief” to ­those granted the formal rights by the state to utilize VFV land. Farmers who refused to leave their plots w ­ ere often charged u ­ nder criminal Penal Code sections 427 for trespassing and 447 for damage to private property, and the even more serious section 505(b) for defamation of the state.79 A pro bono ­lawyer lamented, “We only go to criminal court as defendants, not as prosecution.”80 The tendency to use the VFV Land Law to criminalize farmers was accompanied by the growth of a pool of land brokers, who facilitated spurious transactions. For such transactions in Bago Region, village leaders routinely received a commission of MMK 100,000, and the Settlement and Land Rec­ords Department (SLRD) received MMK 200,000.81 In one case in Mandalay, the G ­ reat Wall sugar com­pany paid land administrators to approve a VFV land certificate, overriding the claims of twenty farming ­house­holds that had cultivated on the same land five years prior to the arrival of the com­pany in 2000.82 In a workshop hosted by MCRB in 2015, civil society representatives identified several other ways in which investors, both foreign and domestic, overrode

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regulations.83 Some companies manipulated FPIC princi­ples by taking the signatures of village members who signed in at informational meetings and then presenting t­ hese as evidence of consent. When challenged, companies ignored the communities or responded by counterpressuring them. In conflict-­affected areas, companies used state armed forces as their private security forces.84 ­Limited state capacity is not only the result of a weak l­ egal framework, but also symptomatic of state structures that are porous enough to be penetrated by interest groups that manipulate the internal functions of the state to subvert its regulatory powers. ­Under the Thein Sein government, the challenges to reform ­were rooted in a po­liti­cal system that reflected many of the old power relations. Callahan (2012, 123) describes ­t hese relations as follows: In their infancy, the new po­liti­cal institutions of Burma reflect[ed] not so much the formal constitution as under­lying power dynamics that are rooted in personal networks of loyalty and ser­v ice binding together certain reform-­minded retired and active-­duty military officers, soldiers, and ­others who long benefited from direct military rule. As a result, many of t­ hose resistant to reforms continued to rely on their personal networks to resist compliance with new regulations. Although the VFV Land Management Law in theory allows the government to take back land if unused for four years or more, many companies in practice resisted returning land even when they did not develop it. The case of Yuzana Com­pany in the Hukawng Valley, an area officially designated as protected, no less, demonstrated ­these tensions. Communities led by the National Demo­cratic Front, a Kachin po­liti­cal party, carried out extensive campaigns against the com­pany to return its land concession of 270 thousand acres to the community. In May 2015, more than eight thousand villa­ gers from Kachin State sent a letter to the new government calling for its help in resolving this conflict.85 However, the com­pany persisted in retaining the land with the acquiescence of members of the highest levels of the military. This chapter describes how new institutions governing land-­based investments evolved in the early years of the transition and the extent to which ­these ­were able to mitigate against the excesses of capital accumulation. In an effort to shore up legitimacy, the state was pressured to concede to social forces calling for stronger regulation and, in some cases, cancellation of extractive investment proj­ ects. Although the government was inexperienced and often in­effec­tive in enforcing higher standards, it took some key decisions in high-­profile proj­ects and made gradual efforts to streamline its regulatory framework.

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The transition period, particularly in its first half, created a context in which a growing number of state actors and investors w ­ ere incentivized to adopt higher investment standards. State reformers wanted to even out the playing field and reverse the country’s race to the bottom, which characterized ­earlier de­cades of resource exploitation. Some domestic companies wanted to clean up their rec­ord to appeal to foreign investors concerned with corporate reputation. For the Chinese government and prominent SOEs, the vari­ous delays and cancellations in the new operating environment forced their hand to adopt new ways of engagement with Myanmar. On the other hand, high-­level reforms ­were resisted by many domestic and foreign investors, who exploited gaps in the state’s regulatory capacity to avoid bearing the social and environmental costs of their operations. Even more difficult for reformist state actors to overcome was their inability to challenge capital elites who had the po­liti­cal backing of power­f ul actors. As a result, the last de­ cade of transition saw some improvements at the higher levels of policy, while ­actual improvements to the lives of local communities ­were much more l­ imited.

C HA P T E R F I V E

Ayeyarwady Region State-­Citizen Negotiations

In seeking to advance an understanding of the role of land in political-­economic transitions, the first part of this book illustrates the national-­level dynamics that resulted in a contradictory pro­cess of land democ­ratization during Myanmar’s transition period. The second part of the book shows that, despite the ubiquitous nature of the national-­level dynamics, outcomes in contests over land are contingent on the specific historic, po­liti­cal, and geo­graph­i­cal contexts that characterize each region. Bearing in mind the diversity in regional contexts, the reason that land politics play out differently across dif­fer­ent parts of the country can be attributed to the following variables: (1) how the history, geography, and natu­ral resource endowment of each region created dif­fer­ent pressures on the land; (2) how the interests of formal and informal authorities at dif­fer­ent levels of government together created dif­fer­ent po­liti­cal opportunities; and (3) how the presence or absence of civil society interacted with ­these opportunities. ­These variables derive from Tarrow’s (1998) framing of social movements as complex interactions between po­liti­ cal opportunities and dense social networks, including the strategies and frames of meaning employed by the latter. This framing affirms the need for a localized approach to understanding how democ­ratization pro­cesses unfold in countries in transition, particularly in ­those with highly mixed socie­ties. Furthermore, the variables analyzed in the case studies directly map to the three-­part transition. The first variable (pressures on the land) was directly contingent on the country’s market opening, as described in chapter 4. The second and third variables (po­liti­cal opportunities and civil society responses to them) depended on w ­ hether state actors ­were incentivized by a quest for legitimacy and ­whether civil society could utilize this incentive to hold state actors to account during the transition period, as described in chapter 2. The second and third variables ­were also s­ haped by the ethnic politics of land, as described in chapter 3. This chapter, about the Ayeyarwady Region, and the next two, about Chin State and Kayin State, discuss ­whether and how the convergence of the three variables resulted in more demo­cratic land institutions, which refer not only to the formal

111

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and informal rules and processes that prevent arbitrary violations of citizens’ land rights, but also to the spaces in which ­people participate to shape t­ hose rules. Sharing some characteristics with other predominantly Burman lowland regions, the Ayeyarwady Region, with a population of 6,262,000 in 20151 (GOM 2017, 24), is characterized by a rice economy. The Ayeyarwady Region produces the greatest share of monsoon paddy production, at 28.4 ­percent of national production (GOM 2014). Given the region’s perceived importance to the country by the government, the issuance of land use certificates (LUCs) was prioritized for the Ayeyarwady Region. As of early 2016, out of a target of nine million LUCs nationally, 1,092,887 LUCs ­were given to 688,805 ­house­holds in this region, covering 4.03 million acres.2 Given the region’s reputation as the country’s “rice bowl,” the Ayeyarwady Region (“the Delta”) has a long history in which rural society was closely administered by the state relative to the ethnic states. The introduction of a cadastral system for land administration by the British and creation of the Settlement and Land Rec­ords Department (SLRD) in 1906 to manage tax collection on cultivated plots contributed to routine interactions between the p ­ eople and the state. At the same time, the region has a reputation for having some of the country’s most po­liti­cally active farmer groups. ­After Cyclone Nargis in May 2008, the influx of international aid contributed to a growth of civil society in the region. Its proximity to Yangon also enabled civil society actors in the Delta to work more closely with t­ hose in Yangon, thereby increasing the Delta actors’ po­liti­cal participation. As part of a nascent democ­ratization pro­cess, rural politics in the Delta ­were ­shaped by a resurgence of civil society, which demonstrated adeptness at engaging with state actors to influence land politics in the region. As elaborated further, t­ hese challenges largely centered on advancing the rights of smallholder farmers, with l­ittle to no emphasis on the ethnic politics that characterize Chin, Karen, and other minority-­dominant states. Although the Delta has a significant share of Karen ­people who migrated t­ here from the mountainous areas east of the Delta along the Salween River, they w ­ ere largely integrated into a Burman society, especially a­ fter the pacification of Karen communities that joined the armed strug­gles against the military government (Thawnghmung 2004). My main argument about the Delta is that, despite the high pressure on the land, progressive land policies w ­ ere advanced by opportunistic alliances between state reformers and farmer leaders, as well as advocacy from a substantive bloc of civil society actors who w ­ ere able to mobilize significant numbers of smallholder farmers to engage in official or contentious collective action against the state. Given that the outcome of land contests is unique to the historical, po­liti­cal, and geo­ graph­i­cal contexts of each region, this chapter starts off with an overview of the

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Delta from the colonial era up to the 2010 election. This context sets the stage for a discussion of the po­liti­cal opportunities that arose in the Delta in the early years of the transition, as well as the civil society actors—­including farmer unions—­ that mobilized in reaction to t­ hese opportunities. This is followed by a discussion of the strategies and outcomes that ­were utilized by ­these actors to challenge unjust land policies.

A Rapidly Changing Region In The Burma Delta, Michael Adas (1974) evocatively described how the Delta became Southeast Asia’s “rice bowl” in the colonial era over three phases he called the expansion phase (1851–1907), the closing phase (1908–1930), and the Depression (1930–1941). According to Adas, following the Second Anglo-­Burmese War in 1852–1853, the Delta was annexed to the British Raj, the name given to British rule over the Indian subcontinent from 1858 to 1947. At that time, the area stretched over thirty-­ eight thousand square miles, consisting mainly of the flat and fertile alluvial plain around the Ayeyarwady River, an ideal area for rice cultivation. Driven by increased demand for rice from Eu­rope, the British initiated policies to transform the Delta into an eco­nom­ically vibrant region linked to thriving export markets. At the time, the Dry Zone, in the m ­ iddle of the Burman lowlands, experienced droughts and food shortages. This led to a surge of migration into the Delta from the Dry Zone (as well as India), eventually leading the Delta’s population to surpass that of the Dry Zone by the time of the first census in 1891. With the belief that “cultivators would be more industrious and law-­abiding if they owned the land they cultivated” (Furnivall 1931, 49), the British passed the 1876 Lower Burma Land and Revenue Act. This act gave a farmer who continuously cultivated land for twelve years permanent rights over a plot of up to fifty acres, allowing the farmer to sell, transfer, or mortgage the land. In response to the rise in demand for capital to expand cultivation, the Chettiar from Madras, members of a mercantile caste, became the main lenders, providing more than half of the total value of crop loans in Lower Burma secured against the borrowers’ land (Brown 2005, 15). In 1856–1857, 662,000 acres w ­ ere reportedly cultivated, but that figure grew exponentially to 8,702,000 acres by the mid-1930s (Adas 1974, 22). In contrast to the expansion phase, which saw rapid acceleration in the rate at which new areas ­were cultivated, the closing phase saw l­ittle of the growth potential that characterized the preceding de­cades. Due to the rising price of l­imited land, the area u ­ nder cultivation grew by less than 12 ­percent in the de­cade from

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1910 to 1920, compared with a growth of 76 ­percent in the de­cade from 1890 to 1900 (Adas 1974, 129). The continued use of the low-­intensity broadcasting sowing technique, the low use of fertilizers, and extension of cultivation into areas prone to flooding depressed the average productivity per acre (Adas 1974, 129–132). The month of September 1930, during the ­Great Depression, saw a drastic fall in prices when the value of paddy exports dropped by 63 ­percent: the value was 73.4 rupees per ton in 1936–1937, compared with 152.4 rupees a ton ten years ­earlier (Brown 2005, 27). This change led to increased land concentration in the hands of nonagriculturalists—­f rom 31 ­percent in 1929–1930 to 50 ­percent by 1934–1935—­w ith half of that held by the Chettiar (Adas 1974, 188). In “the darkest hour,” farmers resorted to a number of techniques including cutting back on consumption of paddy; returning to self-­sufficiency; postponing the repayment of government loans; and rejecting the repayment claims of landowners, moneylenders, and tax collectors with methods ranging from “surreptitious repudiation to violent confrontation” (Brown 2005, 73). ­After in­de­pen­dence, economic decline, and the prominent role of the Chettiar as landlords motivated Burmese nationalist leaders to end landlordism and reduce foreign influence in domestic agriculture, first through the passage of the 1953 Land Nationalization Act (Brown 2005). A de­cade l­ater, General Ne Win passed the 1963 Disposal of Tenancies Law, which made farmers tenants of the state and further extended the granting of land use to cultivators. In addition, the 1963 Farmer’s Rights Protection Law was enacted to prevent confiscation of land by parties other than the military government, in the event of debt default by farmers. While ­these laws contributed to unwinding some of the land concentration that characterized the Delta ­after a period of economic depression, the military’s introduction of a paddy procurement policy from 1974 ­until 2003 again reversed that unwinding (Hudson-­Rodd et al. 2003). This policy required farmers to sell twelve baskets of paddy per acre to the government at below-­market prices. ­Those who could not meet quotas had their land confiscated and allocated to more productive farmers, in turn leading to greater land concentration. The market opening from 1988 to 2010 led to more land confiscation in the Delta and nationally. To avoid social unrest and sustain the regime (Fujita and Okamoto 2009), new policies promoted export-­ oriented production of industrial crops such as sugar, rubber and palm, and aquaculture, with the intent of securing foreign exchange. ­Under the 1989 Aquaculture Law and the 1991 Wasteland Instructions, government entities and companies w ­ ere encouraged to develop agribusinesses as well as fish farms (Mark and Belton 2020). The land affected by t­ hese policies included uncultivated land, as well as land tilled by farmers, albeit much of it without official documentation (Mark and Belton 2020). The government incentivized

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companies to develop large land concessions by subsidizing the price of fuel and machinery, putting in irrigation infrastructure, and promoting rice exports (Okamoto 2009). Although many companies benefited from the subsidies, most of them did not actually cultivate or export rice. Okamoto (2009, 242) describes this as “an extreme example of the inefficient expansion of sown acreage.” The region’s minister of agriculture explained to me in 2016 that ­these land concessions ­were used ­under dif­fer­ent arrangements and often not according to plan: 1. Investors leased land to tenant farmers, who paid a rental fee (usually in kind). 2. Investors used a form of contract farming, sometimes by supplying some inputs. 3. Investors stripped the land of resources but did not develop it. 4. Investors sold part of the concessions to a third party. 5. Investors did not use the land at all.3 Due to policies that allocated swaths of land to investors, the Delta came to have one of the highest rates of landlessness in the country, estimated at 32.6 ­percent in 2010, just before the land market was formalized by the passage of the 2012 Farmland Law (UNDP 2011, 43).

Po­liti­cal Opportunities The passage of the 2012 Farmland Law led to the formalization of the land market and a rise in prices, especially in areas close to major roads and infrastructural developments. A 2016 study on the changing dynamics of the land market in peri-­urban Yangon found that one acre of land situated near roads could easily cost more than what a h ­ ouse­hold earned on average from a lifetime of farming (Boutry et al. 2016, 52). The rise in prices also raised the stakes for ­t hose involved in the many land disputes associated with the land titling pro­cess. As explained in chapter 1, disputes between traditional users of land and more recent claimants, most of them investors, resulted in increased arrests among farmers charged with trespassing on land that the state no longer recognized as theirs. Conflicts also grew between community members, such as landlord versus tenants or kin versus kin. Due to a rise in land conflicts, the regional government was forced to change its approach to land management. This change in approach could be traced to the highest levels of government, which created the Parliamentary Land Investigation Commission (PLIC) in 2012 to

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review and address the rampant land confiscations ­under the military government. At one of his earliest national addresses on June 19, 2012, President Thein Sein said, “it is time to embark on land reform for regional development, job opportunities, economic development and higher living standards.” 4 Two years ­later, at the opening ceremony of a workshop on land management in Naypyidaw on August 15, 2014, President Thein Sein said that granting land to landless ­people is an impor­tant task in the pro­cess of socioeconomic development and reducing poverty.5 In line with the tone set by the president, reformers in the regional government indicated their support for progressive land policies in the early years of the transition. A man­ag­er from Paung Ku, a non-­governmental organ­ization (NGO) that worked with the regional government to resolve land cases, explained to me, “One reason [for the chief minister’s support] is that the president already speaks about good governance, and the minister wants to be seen as promoting the same.” 6 He further explained that this change could be attributed to the desire of members of the ruling Union Solidarity and Development Party (USDP) to (1) use land returns to maintain their popularity with their constituents; (2) resolve urgent land conflicts, many of which attracted media coverage unflattering to the officials; (3) promote economic growth; and (4) leave positive personal legacies. In line with Tarrow’s theorization of social movements, an understanding of state actors’ incentives can help civil society actors not only to understand the vulnerabilities of ­those they seek to influence, but also to identify po­liti­cal allies. In the run-up to the November 2015 election, across the country the USDP faced stiff competition from the National League for Democracy (NLD), which was predicted to be the front-­runner, given that it had won 81 ­percent of seats nationally in the 1990 election (TNI 2015a). In addition, ­there w ­ ere new farmers parties, including the Myanmar Farmers Development Network, the biggest farmer-­based party in the Delta, fielding 268 candidates.7 In November 2012, the party claimed to have five million fee-­paying ­house­holds. Brandishing the logo of the leader of the Saya San Rebellion, an anticolonial uprising in 1930–1932 that was fomented by economic hardships linked to the G ­ reat Depression, the party said that it would focus on land confiscations, mechanized farming, and improving access to affordable loans for farmers. The P ­ eople’s Party of Myanmar Peasants and Workers, registered in December 2014 with a head office in Pathein, the capital of Ayeyarwady, claimed sixty thousand rural members across the Burman heartland. The party’s platform included restitution for ­t hose who had lost land and support to smallholders, including technical assistance and credit to farming communities. In response to the competition, the USDP purportedly made a “cash splash” by providing f­ ree medical treatment, making cash contributions to villages, and building roads and bridges.8

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Many civil society leaders working on land issues in the Delta believed that the USDP-­dominated government used land returns, first, as a way to gain support from constituents. “The old government supported the Ayeyarwady Farmers Union ­because the former chief minister, U Thein Aung, wanted to use the farmers’ energy to win reelection,” explained a man­ag­er from the NGO Share Mercy.9 The Green Peasant Institute (GPI), another NGO, used the electoral dynamics to persuade government authorities to support land returns, as demonstrated by the slogan “no land, no vote.” Tin Lin Aung, the head of the organ­ization said: I have tried to cooperate with government officials. They welcome you. They even join the farmers’ conferences and meetings. But they w ­ ouldn’t do anything tangible. They ­don’t provide solutions that they promise to. They join hands with CBOs [community-­based organ­izations] and farmers and give false promises so that farmers w ­ ill vote for them in the coming elections. Farmers are the biggest majority in Ayeyarwady Division, that’s why, they need votes from them if they ­were to maintain their positions. (Nwe Ni Soe 2015, 54) A second reason for the regional government’s intensified efforts to resolve land conflicts had to do with its aim to see increased economic development in the region, which could not be easily achieved in the midst of numerous unresolved conflicts. At a workshop in January 2016 in Pathein, where members of the out­going regional government shared their experiences in managing natu­ral resources, the out­going minister of agriculture said that many land conflicts in the Delta deterred investments. As a result, the regional government was forced to pause the allocation of land concessions while attempting to resolve the barrage of cases. Several departmental officers said that the regional government did not give out new land concessions to companies from 2012 to 2016, despite the fact that applications w ­ ere 10 submitted to the government. This was confirmed by a study that found that no VFV land concessions w ­ ere granted in 2012–2013, and only minimal concessions ­were granted in 2014–2016, mainly to farmers (San Thein et al. 2018, 37). A third reason for ­t hese intensified efforts related to individual desire to leave ­behind positive personal legacies. For example, the minister for municipal affairs advocated land returns much more strongly in his native township, Lay Myat Na, than in any other township in the Delta. The regional minister of agriculture explained to me: I am a farmer and my sons are involved with farming. You can imagine which side we stand for. We want to do more, but we must work with the rules and procedures of the government. We have empathy for the farmers.

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For example, with the Ngwe Saung ­hotel zone, before 2012 compensation was only required for the trees and crops, but now we are negotiating payments for the land.11 Fourth, state reformers also found that working in alliance with farmer ­unions could help the government to solve highly complex conflicts. A USDP member of Parliament for the Ayeyarwady said, “Before we supposed that farmer ­unions are activists. Now the government allows them to register. It is better to have them than not to have them.”12 Farmer ­union leader Aung Moe Win added, “The chief minister wants to see positive change. . . . ​W hen they want to do good, they look for partners that are ­really d ­ oing good.”13 Following his decision to collaborate with a farmer u ­ nion, which he called the Ayeyarwady Support Group for Resolving Farmers’ Issues, the chief minister sent letters out to all twenty-­six townships in the region telling authorities to cooperate with the farmers. Local authorities w ­ ere required to participate in a series of workshops to which farmers brought their land grievances, often with supporting documentation and photos. The value of this collaborative relationship was recognized by the regional minister of agriculture: “I accept any organ­ization that works according to rules and regulations and in benefit to the ­people. I have a good relationship with Aung Moe Win. I recently asked him to look into a case that came up.”14 Despite the willingness of the regional government to support a collaborative approach to resolving land cases, it was evident that the pro­cess was fraught with challenges. The minister of agriculture explained that the complexity traced to the history of a punishing paddy quota policy: In 1995 when U Shwe Mann was the commander, ­t here w ­ ere projections that Myanmar would face a food crisis. Farmers ­were encouraged to expand paddy cultivation by one million acres extra on the dif­fer­ent types of land—­VFV, wasteland, deep ­water land, pastureland and reserve forest. Many ­didn’t want to register this land to avoid the paddy quota. So, their land was not included in the SLRD maps, and they also did not receive tax receipts.15 A lack of formal documentation put many farmers at a disadvantage when the government attempted to resolve land conflicts.

Civil Society Presence In nascent democracies that have large rural populations, multi-­party elections may not immediately produce tangible benefits for rural ­people (Fox 1993). However,

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collective action may emerge over time in response to “changes in opportunities that lower the costs of collective action, reveal potential allies and show where elites and authorities are vulnerable” (Tarrow 1998, 18). A ­ fter all, w ­ hether peasants “actually rebel depends on a host of intervening ­factors—­such as alliances with other classes, the repressive capacity of dominant elites, and the social organ­ization of the peasantry itself” (Scott 1976, 4). This may result in rural communities getting involved with dif­fer­ent types of politics, including “official politics,” or state politics; “advocacy politics,” or the public opposition to state policies; and “everyday politics” (Kerkvliet 2009). While the preceding section demon­strates that several f­ actors created po­liti­cal opportunities for civil society, rural social movements might not have been so strong in the Delta if it w ­ ere not for the fact that this region already had many of the characteristics suited to the development of farmer networks. Given a history in which the region was prized as the country’s rice bowl and its physical proximity to Yangon, where the major ports for trade and the former capital (1948–2006) ­were located, the colonial and postcolonial government had substantial involvement with communities in the Delta. The Delta was the region targeted by the British modernization proj­ect, which sought to integrate it into an export-­oriented economy (Adas 1974, 200). ­Later, the Delta received substantial attention from the State Peace and Development Council (SPDC) government’s modernization efforts in the rice sector, which, however, often left rural h ­ ouse­holds worse off (Thawnghmung 2003). As a result, communities resorted to dif­fer­ent strategies to deal with authorities, including evasion, negotiation, and direct challenge, exemplified by the Saya San Rebellion from 1930 to 1932 (Brown 2005, 73; Adas 1974, 200). This history informed the politics that characterized the region in the transition period. A member of Loka Ahlinn, a rights-­based organ­ization operating in the Delta, explained: In the Delta, p ­ eople have strong collective identity as farmers and fishermen. They w ­ ere brutally oppressed since de­cades ago. Communist leaders started ­t here. Th ­ ose from the Saya San Rebellion fled to Hinthada. Compared to other areas, Delta p ­ eople are very po­liti­cally active, second ­after Yangon.16 Rutten et al.’s (2017) relational focus on the bargaining power of smallholder farmers sheds light on the extent to which they can affect the po­liti­cal structures that impact on their ability to access and control land. This focus derives from Ribot and Peluso’s (2003) theory of land access and control. They argue that to understand p ­ eople’s ability to “gain, maintain, or control access to resources” (2003, 172), it is necessary to assess the “structural and relational mechanisms of

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access” (2003, 160) based on a “wider range of social relationships that constrain or enable benefits from resource use than property relations alone” (2003, 153). They further clarify that they “define access as ‘the ability to derive benefits from ­things,’ broadening from property’s classical definition as ‘the right to benefit from ­things.’ Access, following this definition, is more akin to ‘a bundle of powers’ than to property’s notion of a ‘bundle of rights,’ ” which are sanctioned by legitimate institutions (Ribot and Peluso 2003, 153). Rutten et al.’s (2017) focus on horizontal and vertical relations of power allows us to understand how smallholder farmers negotiate power relations. The focus on horizontal relations examines farmers’ alliances with groups whose interests and identities overlap with their own, as discussed in the remainder of this section. A focus on vertical relations looks at how farmers leverage influence on state authorities and companies, as discussed in the next section about po­liti­cal strategies used by farmer ­unions. Key to the strength of rural movements are the horizontal relations between farmers themselves, as well as between farmer ­unions, CBOs, and NGOs. While CBOs are formed at the grassroots level in response to local needs, NGOs can be local or international, are funded and accountable to registered donors, work on a proj­ect basis, and are more l­ imited in the extent to which they can take up overtly politicized work. Other groups that form part of the alliance include national-­level entities and the media. In the next section, I describe the characteristics of farmer ­unions active in the Delta. Given the numerous groups, it is not pos­si­ble to cover all of them in detail. Therefore, I provide an overview of dif­fer­ent types of ­u nions and a case study of one of them. I then analyze how they tend to interact to build horizontal and vertical alliances.

Farmer Unions Although farmer ­unions ­were historically suppressed, official documents such as the 2015 National Action Plan for Agriculture showed an increased willingness on the part of the government to work with u ­ nions to promote agricultural growth. In the early years of the transition, farmer ­unions ­were created by rural community leaders or organizers based in Yangon or other cities to serve dif­fer­ent purposes. A 2015 study on farmer u ­ nions across Myanmar found that they had dif­fer­ent characteristics: (1) groups with local reach versus groups that worked at regional or national levels; (2) groups that w ­ ere trying to shift the balance of power versus groups that delivered donor-­f unded proj­ects; and (3) formal, registered groups versus informal, grassroots groups (FSWG and GRET 2015). Farmer ­unions could register u ­ nder the 2014 Association Law and the 2011 L ­ abor Organ­ ization Law, which allow u ­ nions to federate at the national level. By 2016, half of

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t­ hese ­unions ­were registered, many u ­ nder the belief that formality increased their credibility in dealing with power­f ul individuals. The other half avoided registration in order to stay po­liti­cally agile. The same 2015 survey, which gathered information on seventy-­seven farmer ­unions, categorized farmer ­unions as local farmer ­unions (50 ­percent), local technical economic farmer organ­izations (20 ­percent), federations of farmer ­unions (15  ­percent), national economic farmer organ­izations (5  ­percent), and mixed farmer organ­izations (10 ­percent). The survey found that local farmer u ­ nions w ­ ere the most prevalent. They raised awareness among farmers by sharing information, facilitated exchanges among them to solve common prob­lems, resolved conflicts by negotiating with elites, and at times even or­ga­nized demonstrations. Farmer federations w ­ ere few and initiated by urban groups with access to donor funding. A smaller share focused on the technical constraints of farmers, such as production. Most of t­ hese groups did not have significant external financial support and w ­ ere l­ imited in their reach. On the other hand, many local farmer u ­ nions and CBOs feared that formalization and having a donor relationship might lead to a loss of in­de­pen­dence. A rights-­based NGO in Yangon expressed concern that social movements supported by outside donors might not reflect the natu­ral evolution of ­t hese groups. A representative said: Many donors’ efforts to make the government more accountable are in­ effec­t ive. Many foreigners think this is happening, so they tell farmer groups that “If you do this [formalize], you get this funding.” In Letpadaung, where t­ here are no donors, the farmers groups are not willing to compromise, they just want to resist. The po­liti­cal culture changes slowly.17 The geo­graph­i­cal isolation, differences in approach, and even rivalry all hampered the creation of a unified farmers’ movement. Though t­ here w ­ ere attempts to bring disparate groups together, this was extremely difficult. A man­ag­er from Paung Ku, which tried to build a national farmers’ network, lamented: “This is our Myanmar culture. It is very hard for us to work together. . . . ​The government is also making them fight. This is our history u ­ nder the military government. For a long time, we d ­ on’t believe each other.”18 Some groups w ­ ere accused of being “in the pocket of the government” or being perceived as working too closely with authorities. “Government makes the decisions at the end, but if a group gets too close, p ­ eople get suspicious,” continued the Paung Ku staff. Mistrust and divisions also arose when groups ­were judged for chasing a­ fter donor money. A farmer organizer blamed this on the donor culture:

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­ fter Nargis, donors spoiled the community. Even though t­ here are many A proj­ects to do, they ­don’t participate ­unless they get paid. ­People start to shop around for workshops. They get to stay in nice ­hotels, get travel costs paid for. ­These are very dif­fer­ent from organ­izations that come from the community.19 A member of the 88 Generation Peace and Open Society lamented that most farmers are not able to unify into a full-­fledged federation b ­ ecause of po­liti­cal immaturity: Every­one knows t­ here is a need for cooperation, but every­one wants to be the boss. Eighty-­eight has about two hundred thousand farmers that it can reach. Eighty-­eight does not want to force a structure on them; ­later on, it ­will fall apart. ­People need more po­liti­cal maturity in order to be or­ga­nized into strong structures.20

Horizontal Alliance Building The preceding section describes the diversity of farmer u ­ nions, with some arising more organically and o ­ thers being created with the assistance of Yangon-­based groups. In addition to horizontal networking, farmer ­unions in the Delta leveraged relations with other civil society actors to form advocacy co­a li­tions. ­These included CBOs, local NGOs, and to a lesser extent, groups working at the national level. “Advocacy co­ali­tions” could be defined as ­people from dif­fer­ent backgrounds who “1) share a par­tic­u­lar belief system, i.e., a set of basic values, causal assumptions, and prob­lem perceptions, and who 2) show a non-­trivial degree of co-­ ordinated activity over time” (Sabatier 1988, 139). Th ­ ese alliances are crucial to achieve a “realignment of interests, norms and power” in order to change institutions that are no longer considered legitimate (Nee and Swedberg 2005). The terms “CBO” and “NGO” are often used interchangeably, but t­ here are differences. South and Petri described t­ hese differences in Myanmar’s context: A CBO is used ­here to mean a grassroots membership organ­ization—­based in the community and locally managed—­w ith its members as its main beneficiaries. CBOs usually exist in just one community or a group of adjacent communities. In contrast, NGOs are ser­v ice providers that work for social, non-­profit ends (for the benefit of the community). Staff may be local, national or international but not necessarily drawn from among the beneficiaries. Although NGOs often employ participatory, “grassroots” approaches, they usually work in broader thematic and geographic areas than do CBOs. (2014, 86)

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­There ­were numerous CBOs operating in Myanmar in the past de­cade. While most started out being unregistered, CBOs registered as NGOs if they believed it would make their operations more credible to authorities and facilitate access to donor funding. CBOs not only aided in land conflicts, in such ways as facilitating access to l­egal advice, but also provided welfare support, such as agricultural extension support and education for youth. One of the few studies about the role of CBOs working on land conflicts in the Delta compared CBOs active in Maubin Township: Pyo Khin Thit, the Farmers and Fishermen Support Group (FFSG), and the Maubin chapter of the Agriculture and Farmer Federation of Myanmar (AFFM) (Nwe Ni Soe 2015). Pyo Khin Thit and the FFSG w ­ ere unregistered, while the AFFM was the local chapter of a national farmer federation created in 2000 and registered with the Ministry of ­Labour. All operated with minimal bud­gets, charged fees, or shared costs with communities. One way to distinguish between dif­fer­ent types of CBOs is to examine w ­ hether they adopt disruptive strategies in their efforts to bring about social change. Pyo Khin Thit and FFSG tended to rely on information sharing, education, and negotiation to support farmers. Pyo Khin Thit was founded by thirty youth volunteers ­after Cyclone Nargis to bring youth together to read and discuss po­liti­cal issues. As they ­were involved with social issues in the community, farmers started to bring their land confiscation prob­lems to the group. Pyo Khin Thit then got involved with conducting trainings on land rights and assisted farmers in discussions and negotiations over contested land. The FFSG was initiated in 2013 by a Maubin-­based NLD member. Although it or­ga­nized protests in its first year, its founder came to believe that protests do not bring change and modified the group’s strategy to facilitating discussion over land conflicts, sourcing l­egal advice, and helping farmers navigate complex land administration. The AFFM was part of a national farmer federation and had sixty-­five groups of at least thirty members each. Although the AFFM was part of the national federation, it did not receive support from the central office in Yangon. At member meetings, held monthly, farmers discussed their prob­lems with land and agriculture. Farmers ­were trained in organ­izing and assisted to file complaints and negotiate with authorities. The AFFM used a mix of official and disruptive informal strategies. The secretary explained the group’s strategy: Plow protests are necessary mea­sures, and my organ­ization has or­ga­nized ­these protests. Before occupying the land, the organ­ization sends a letter of warning . . . ​demanding that the committee solves the disputes effectively and quickly, other­wise, farmers would occupy and farm on the land. I would

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rather not use the word “plow protest.” Farmers are not occupying land in protest, but they occupy it from ­those who unjustly have grabbed it and for their livelihood, which is their right. (Nwe Ni Soe 2015, 57) The CBOs expended a g­ reat deal of effort on land cases but often did not achieve the desired results. Some w ­ ere criticized for using inappropriate tactics, while ­others w ­ ere negatively perceived as being too involved with politics by community members who expected the CBOs to focus only on the provision of basic ser­v ices. The founder of Pyo Khin Thit said, “­People cannot just start up a CBO ­because they have ten members . . . ​­t hose members need to be trustworthy in the eyes of the public” (Nwe Ni Soe 2015, 77). Local NGOs w ­ ere another impor­tant bloc of actors in the Delta’s land politics. Green Peasant Institute, which started off as a local farmer u ­ nion, was a local NGO with an established reputation helping farmers resolve land disputes in the Delta. It was initiated by a charismatic leader and had no staff, no formal structure, and no external funding. In 2014, GPI had three thousand fee-­paying members and nonpaying associates in most townships in the Delta. In early 2015, GPI registered; received funding from foreign donors; opened a center in the regional capital, Pathein; and hired staff to resource the center. Farmer u ­ nions, CBOs, and NGOs often collaborated to resolve land cases. The Pyo Khin Thit founder said, “We are a small group with limitations as to how much we can do. So when work is too big for our capacity, we transfer it to bigger organ­izations that are able to take on the task” (Nwe Ni Soe 2015, 40). In one case, FFSG worked with GPI to advocate for the regional government to lessen the punishment handed to farmers (Nwe Ni Soe 2015, 42). In 1992, the government confiscated one hundred acres of land farmed by sixteen farmers from Aung Hate village tract on the basis that it was low-­lying flood land and therefore could not be farmed. Eight ­house­holds reoccupied the land in August 2013, claiming that only one acre had been used by the Department of Fisheries. The Department of Fisheries sued the farmers for trespassing and demolished their ­houses on the contested land. Farmers contacted FFSG, who then contacted GPI, and together they convinced regional authorities to shorten the farmers’ sentences to two weeks of jail time. At times, farmer ­unions, CBOs, and local NGOs collaborated with larger entities based in Yangon working at the national level. Prominent groups included the 88 Generation Students Movement and its affiliate organ­izations; Land Core Group (LCG); and Land in Our Hands (LIOH), founded by Paung Ku, an influential NGO active in national campaigns. ­These groups focused their attention on high-­level policymaking and represented the broad interests of farmers across the country, as mentioned in chapter 2. In addition, LIOH served as a forum to

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help farmers groups network across the country to cross-­fertilize thinking and to coordinate advocacy at the highest levels. Reflective of the group’s strategy, the coordinator for LIOH said that advocacy with the government to resolve land issues had not shown results. He espoused a dual approach that combines engagement and disruption to pressure the government: “One involves land rights activists and advocates holding discussions and negotiating with government. The other is for farmers and activists to adopt stronger strategies such as protests and using media to ‘blame and shame’ the government” (Nwe Ni Soe 2015, 58). Fi­nally, ­t here ­were the media. In the dynamic interaction between po­liti­cal opportunities and collective action, the spread of information about the “susceptibility of a po­liti­cal system to challenge” could itself lead increasing numbers of ­people to join a movement and to “test the limits of social control” (Tarrow 1998, 189). The media w ­ ere crucial national-­level actors for spreading this type of collective consciousness. During the transition years, the relaxation of restrictions on the media and the proliferation of programs working to strengthen the media resulted in a more informed and engaged media capable of questioning the decisions of the government and other power holders. The media became increasingly vocal about land-­related abuses since 2012, when activism around land started to gather momentum. In the past de­cade, the media amplified t­ hese concerns and demands for change to authorities and the public. Thus, the media played a key role in shaping the discourse early in the movements for land justice in the Delta and nationally.

Po­liti­cal Strategies The success of rural movements depends not only on actors’ ability to form alliances, but also on their access to material resources, their ability to frame collective goals, their capacity to learn from experience, and the effectiveness of their strategies (McAdam et al. 1996). Material considerations include orga­nizational structures, leadership style, degree of formality, and access to financial and other resources. Ideology refers to the ideas that unify diverse groups to work ­towards a common vision and that are communicated through “framing” (Edelman 2001). In regard to strategy, it is impor­tant that actors are able to perceive po­liti­cal opportunities and to respond to them in a timely and appropriate manner (Tarrow 1998). Strategy effectiveness also depends on movement actors’ ability to coordinate with one another. While some social movement theorists emphasize the need for flexibility in the choice of tactics to be deployed as po­liti­cal opportunities shift (Borras et al. 2008), o ­ thers focus on the need for movement actors to coordinate

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strategies (Sabatier 1988). Coordination was l­ imited in the Delta, where some actors opted for negotiation while ­others chose more contentious approaches. Nevertheless, the developments during the transition years suggest that the combination of ­these two approaches contributed to the adoption of progressive mea­sures on the part of state actors, some of whom already had reasons to want to resolve the growing wave of land disputes.

Negotiation Myanmar’s “stacked” ­legal framework usually put farmers at a significant disadvantage when securing land, while allowing elites with more access to po­liti­cal and economic resources to maintain their hold on confiscated land by strategically using the ambiguity of laws to their advantage (Mark 2016a). Although a small number of civil suits ­were initiated by farmers to defend against or to undo land confiscations, this was often a method of last resort for farmers to regain their land. Civil suits w ­ ere costly, time-­consuming, and arbitrated by a very weak judiciary. As a result, farmer u ­ nions for the most part moved away from using the courts to s­ ettle conflicts and instead looked to negotiation, an approach used by the Delta-­based Ayeyarwady Farmers Union (AFU). The AFU started to work with farmers in 2012 when land conflicts became more vis­i­ble, and as farmers, emboldened by the po­liti­cal opening, contested the legacy of ­earlier confiscations. Like other local farmer ­unions, the group was founded by a charismatic leader, Aung Moe Win, a farmer from Laputta Township in the Delta. From 2012 to 2015, the AFU had no orga­nizational charter, no fixed structure, no hired staff, and no external funding. The group funded its own costs, accessed seed funding from Yangon-­based donors, and asked farming communities to share some costs. By early 2016, it was estimated that the AFU had a reach of ten thousand farmers across twenty townships. Of t­ hese, approximately 70 ­percent of the farmers had lost land. The AFU’s mission was to get land returned and to prevent further confiscations. I was able to observe how the group’s leader rallied the farmers to action at a workshop in Maubin Township in 2015. He said: “Most of you had your land grabbed. . . . Then they formalized it with laws. We need to fight ­t hese two t­ hings. We need to keep on documenting ­these cases.”21 While the AFU in the early years took a more confrontational stance t­ owards the government, its approach changed in 2012 when it partnered with Paung Ku and Oxfam in a series of social accountability workshops. The workshops emphasized discussion and negotiation over confrontation. A man­ag­er at Paung Ku explained to me that the group’s approach was to “encourage them to do t­ hings their own way” through minimal influence on farmers’ choice of tactics.22 Paung Ku

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provided ­legal training on laws that impact farmers’ lives. This led to township and district-­level meetings with authorities and fi­nally a series of meetings at the regional level. “The farmers groups have been learning ways to check and balance to the government. Farmers try to enforce t­ hose laws that are good and try to change t­ hose that are bad for them,” said the Paung Ku man­ag­er.23 This new way of engagement between government and communities eventually resulted in the creation of a sub-­national pact between government reformers and farmers e­ arlier opposed to the government. The head of the AFU explained to me that the Ayeyarwady chief minister agreed to formally collaborate with the AFU in the resolution of the region’s land conflicts, a pro­cess through which the formal and informal “rules of the game” could be rewritten. Noting that he viewed the AFU as a partner in the resolution of the Delta’s land conflicts, the chief minister referred to it as the Ayeyarwady Support Group to Resolve Farmers’ Land Conflicts. The AFU used documentation and l­egal arguments to negotiate better outcomes for farmers. The head of the AFU emphasized the need for cooperation with the government: I ­don’t encourage farmers to do plowing protests. Protests are needed, but comparing the advantages to the disadvantages, the disadvantages are higher. If the breadwinner goes to jail, families have nothing to eat and

“Accountability workshops” in which farmers voice their prob­lems with land access to regional authorities in Ayeyarwady Region in 2015. From author’s collection

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no work. We want the breadwinner to stay with the f­ amily, so we can advocate other ways. The regional government allows the farmers to advocate, so we cooperate with the government.24 At the same time, the group was clear that even as it worked with government, it was ultimately aligned with farmers. “We are not on the side of the government, but with civil society. We are working to get the benefits for the farmers,” the AFU leader added. Using this approach, the AFU collaborated with other civil society organ­ izations and pro bono l­ awyers to get land returned in Lay Myat Na Township. In 2015, the group was close to getting back one thousand acres out of ten thousand acres taken by four companies. The AFU worked with the SLRD to get official information on the case and checked this against the ground situation. The AFU found that the companies involved had permission to take only three, not ten, thousand acres and created maps to show the areas the companies w ­ ere not using. B ­ ecause the companies ­were connected to power­f ul ­people, they managed to delay the return of the land. Th ­ ere ­were no signs of its return in 2016, the last time I inquired about the case. Reflecting the volatile nature of po­liti­cal opportunities, the new chief minister appointed by the NLD government a­ fter the 2015 election no longer recognized the group as the main interlocutor with farmers. Aung Moe Win interpreted this as the new government being too controlling of civil society and expressed his concern: “NLD is too centralized, democracy may soon be lost. . . . ​Myanmar ­people have huge expectations of Aung San Su Kyi. She is trying to centralize control to make ­t hings happen. W ­ ill that be good or bad?”25 In response to the changing po­liti­cal environment, the executive committee ­adopted a new strategy to register the farmer ­union to formalize engagement with the NLD government. Aung Moe Win envisioned that “­going forward, we want to make the u ­ nion as an institution that the government ­will try to listen to.”26 Namati, another group that promoted the use of negotiation in land conflicts in the Delta, has as its self-­described mission to “squeeze justice out of even broken systems.” Namati’s para­legals provided ­legal support to rural communities and worked closely with farmer ­unions and civil society leaders. From 2013 to 2015, Namati opened 2,500 cases, with 30 ­percent of the cases related to land conflicts, while the rest dealt with land registration. At that time, ninety para­legals covered five hundred village tracts across the lowlands of seven states and regions. By the end of 2015, a quarter of the 2,500 cases ­were resolved.27 The compensation tended to be low compared to the market price and only part of the land was returned, but

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many farmers, ­after a long pro­cess, settled with the belief that “something is better than nothing.”28 Namati’s assessment of its own work revealed that many land-­related cases ­were collective in nature and involved larger areas of land. Mediation was very time-­consuming as it involved checking with multiple claimants, securing the support of authorities, and verifying inconsistent rec­ords. Another impor­tant finding was that even a­ fter the resolution of a conflict through negotiation, local authorities might not recognize the informal agreement if they had not been involved in the pro­cess or had not received a bribe. This prob­lem was demonstrated by a case arbitrated by a ­lawyer between two communities in the Delta. He negotiated between two villages in their joint use of alluvial land near a river, which shifts bound­aries with the tide levels. ­After they settled the use of the land, the township authorities changed the land category and reignited the dispute. “I realized that mediation can only work when it is formalized a­ fter an agreement,” the l­awyer explained to me.29 In other words, while negotiation outside of the courts may be the most effective way to resolve land conflicts, any agreement made between disputing parties still needs to be formalized. The l­awyer also cautioned that t­ hose who opt for negotiation to resolve conflicts could hurt their chances of success if they associate with ­t hose who choose confrontational tactics. Of them, he said: They have no ­legal knowledge and ­don’t use persuasion. They only give pressure. The chief minister of Ayeyarwady [­under the Thein Sein government] d ­ oesn’t like pressure. In a case like that, I do not want to associate with activists. I can maintain a better position with the minister.30

Contention In the early years of the transition, many activists who ­were distrustful of the Thein Sein government’s commitment to genuine reform opted to use disruptive methods. Some of ­t hese activists received support from pro-­NLD private donors who also questioned the intentions of the Thein Sein government. A man­ag­er at Share Mercy observed: Many demonstrations are led by Yangon-­based activists. . . . ​For example, Ko Saw, who is from Yangon, started the Farmers Welfare Network. They might be funded by the private donors who believe in challenging the former government. Ko Saw is funded by a restaurant owner in Yangon who is a strong NLD supporter.31

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While some of t­ hese actions had the desired outcomes, ­others w ­ ere criticized as further hurting farmers. A man­ag­er at Share Mercy said, “The government is not r­ eally responding to t­ hese activists. The leaders march to the government offices and say, ‘We have 200 p ­ eople at the gate; you better talk to me.’ ”32 Disruptive tactics ­were heavi­ly controlled by the state. Article 142 of the 1957 Penal Code and article 18 of the 2012 Peaceful Demonstrations Law ­were used to put down demonstrations. Article 142 considers the assembly of any group of five or more p ­ eople to be unlawful. Article 18 prescribes that permission must be sought forty-­eight hours in advance from government for public assembly. The article allows the government authority to deny that permission in order to protect “public tranquility.” When protesters applied at the township police station for permission to assem­ble, they had to provide information about the number of protesters, the date and time of protest, and the messages of the protest. Even ­after supplying all the information, which inadvertently gave authorities additional information about the organizers, protesters ­were often denied permission to assem­ble. This made it easy for authorities to arrest them when they demonstrated anyway. A ­lawyer active in resolving land disputes expressed his criticism of confrontational tactics used by activists, which he considered to be unconstructive and even harmful: The government must re­spect ­t hose who are advocating. They must have a higher power than the target. If they use rude language, how can the target re­spect the activist? Often, it can take several visits. Activists can get applauded by the farmers, but not by the opposition. Advocacy is to get applause from the opposition. ­These are instigators who activate the farmers. They say “we must take back the land, not by law, but by unity of power. If laws are unjust, we must resist.” They do not recognize the law. They say that l­awyers “you are too respectful to the law.” A ­ fter they fail and farmers are in jail, I have to help.33 Nevertheless, some activists ­were successful in raising the profile of issues to such an extent that they could not be ignored. This was the case with an activist who gained notoriety for leading public protests. Extracts from an interview I conducted reflect his thinking and approach to using disruptive methods to achieve his goals: In 1988, I started off as a demonstrator in Singapore in front of the Myanmar Embassy. It is a culture that demands rights without vio­lence. I eventually became known to ­people in Myanmar. . . . ​I c­ an’t be called a

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politician or an activist. I am a religious person. What is happening now is not natu­ral. Injustice is unnatural. In e­ very system, t­here are ethics. ­There must be law to punish perpetrators. If laws are enacted for the wrong reasons, then ­people w ­ ill violate them. Violation cannot be called “unlawful,” ­because the laws themselves are unjust. Land is for every­one, so every­one has to follow the laws and nobody can be exempt. It is unnatural when laws are enacted to allow some to be above it, while o ­ thers are suppressed. . . . The first documented land demonstration was recorded on May  31, 2012. This case relates to the DHHS [Department of Housing and H ­ uman Settlements] Yangon and Wah Wah Win Com­pany for the Anawrahta Industrial Park. Communities asked for compensation three times, but ­there was no reply. They took land from the farmers and arrested them to threaten them. This was ordered by DHHS who then gave land to the developer. The government eventually told the com­pany to compensate but it ­didn’t agree. We demonstrated for forty-­four days in front of the com­pany. At the time, we ­didn’t ask for permission. I was sued. The police tried to disperse us, but we stayed on. . . . ​Eventually, we received 80 ­percent of the requested compensation from the com­pany. . . . ­There is more than enough land to go around if companies did not take so much. It becomes a sovereignty issue. Citizens are excluded from access to the land of this country. In the Land Use Policy, if land is not allocated properly, I w ­ ill strug­gle with my last effort to change this. . . . ​Do you know what “democracy” means? It means that one upholds one’s duties to protecting the rights of ­others. I have achieved democracy in my life.34 The case described above demonstrates how disruptive strategies could be effective in forcing the hand of authorities and land confiscators to respond to communities’ demands. However, such cases nearly always exacted significant investments of time, energy, and finances from protesters and their families.

Obstacles to Resolution Due to civil society activism and the incentives driving state reformers, the regional government made noticeable efforts in resolving land cases. In February 2016, the regional SLRD officer explained: The Commission told us to return 27,000 acres, and the regional government ordered 49,620 additional acres be returned, totaling 76,620 acres; 44,290 acres have actually been returned to 4,881 farmers. Another 32,000 acres have been given to 4,887 farmers for temporary use.35

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However, by September  2018, the NLD government reported a less successful rate of return: out of 63,417 acres of confiscated farmland to be returned in the Delta, farmers had received only 13,091 acres.36 Communities that attempted to get land back came up against a host of difficulties, including an unclear l­egal operating context, lack of consistent procedures to h ­ andle multiple claims, and a largely unresponsive administration at all levels of government. One of the most common challenges was related to the application of Myanmar’s ambiguous ­legal framework to resolve multiple claims to the same plots of land. The regional minister of agriculture said, “Concerning land laws, it is hard to find ­lawyers who can understand them. Previously all cases w ­ ere solved in the SLRD, not in the courts. Land laws are not easy to understand.”37 This ambiguity was complicated by other ­factors. Farmers had had their land forcefully redistributed ­under the military regime’s policy of paddy quotas. In the past, farmers had also contributed to this l­ egal ambiguity by operating outside of the formal laws, such as by conducting land transfers unaccompanied by official rec­ords. In addition, t­ here was no standard definition of an “original” farmer. Meanwhile, the oft-­cited Executive Order 1/64, which states that owner­ship should be prioritized for the most recent person to cultivate a plot of land, contradicted instructions to prioritize original farmers. Given the in­effec­tive­ness of the l­egal pro­cess, many parties to conflicts w ­ ere forced to rely on negotiation, putting weaker parties at a disadvantage. Aggravating this situation, many General Administration Department (GAD) officials demonstrated ­little support for the land return pro­cess. In fact, many of ­these officials believed farmers to be opportunistic in using ambiguities in the government’s restitution pro­cess to claim land that the farmers had no official rights to. One Ayeyarwady Region GAD officer complained to me that “the rules c­ an’t distinguish between honest and dishonest farmers.” He also believed that many ­people felt empowered by the new environment to speak out, but that they “speak like c­ hildren” (Mark and Belton 2020). This lack of cooperation from administrators was worsened by a lack of publicly available data about how much land was returned, where the land was located, by whom it was returned, and for whom it was intended. This ambiguity often facilitated the transfer of returned lands away from local communities to the friends and relatives of authorities tasked to return the lands. As a result, government structures ­were often captured by elites who took advantage of the lack of accountability and transparency endemic to ­t hese pro­cesses. Given a history in which communities had to develop adaptive strategies to manage the state’s intrusive agricultural policies, the Delta exhibited a dense and

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complex mix of actors engaged with land politics during the transition de­cade. Reflecting Sabatier’s definition of advocacy co­a li­tions, the actors in the Delta came from a variety of positions; had overlapping values and prob­lem perceptions; and did coordinate, albeit to a ­limited degree. The dif­fer­ent approaches used by farmer ­unions prevented the formation of strong horizontal networks among them. Nevertheless, farmer u ­ nions developed alliances with state reformers and civil society actors operating at the regional and national levels. Many of ­these alliances tended to be on an ad hoc basis—­depending on the alignment of interests at a given period. In addition to the alliances, farmer ­unions had some success in advancing their goals when they learned to adapt to their rapidly changing environments, reflected on their strategies, and changed them when necessary, as demonstrated by the AFU. The rural social movements that appeared in the Delta in the transition phase demonstrated that the opening in the po­liti­cal space indeed allowed a range of social forces to participate in both official and contentious politics. Despite an un­ co­or­di­nated mix of strategies ranging from engagement to confrontation, the civil society pressure put on regional authorities pushed them to support reforms that they might have considered too radical before the transition. The existence of groups that used more extremist tactics likely strengthened the relationship between reformist state and societal actors, as members of the reformist state sought the assistance of societal actors to resolve conflicts that ­were too complex for them to resolve on their own. While only modest land restitution was achieved in the Delta over the de­cade of transition, rural civil society grew in strength while its engagement with government became more sophisticated.

C HA P T E R SI X

Chin State Between State and Customary Institutions

This chapter pre­sents a second case study to demonstrate how the distinct state-­ society interactions in Chin State against the backdrop of its unique historic, po­ liti­cal, and geo­graph­i­cal contexts resulted in land politics that were vastly dif­fer­ent from ­those of the Ayeyarwady Region and Kayin State. Chin State, as it has been officially known since 1974, encompasses a steep mountainous area bordering India and Bangladesh in the western part of Myanmar. Its population was 497,000 in 2015 (GOM 2017, 24) and predominantly consists of groups who self-­identify as Chin. The state is generally considered to be the poorest area in Myanmar, with 73 ­percent of its population living below the poverty line (UNDP 2011, 13). From 1824 to 1948, due to the difficulty of closely administrating remote upland areas, the British passed the “Scheduled Acts” (e.g., the 1896 Chin Hills Regulation), which left many ethnic areas to be governed by customary laws, while the lowlands ­were governed by colonial laws. This resulted in two dif­fer­ent systems of land administration. A ­ fter in­de­pen­dence, the 1947 Panglong Agreement recognized this area as the Chin Hills Special Division in the Union of Burma to be governed by the 1948 Chin Special Division Act (amended in 1957 and colloquially referred to as the “Chin Hills Act”).1 The postin­de­pen­dence government also sought to bring land administration u ­ nder one system with the passage of the 1953 Land Nationalization Act, which nationalized all land across the country. However, given the lack of infrastructure and poor endowment of natu­ral resources in this area, the postcolonial state continued to administer Chin State at arm’s length. The abolition of the system of hereditary chiefs in 1948 in f­avor of a parliamentary government and the adoption of village administrators affected customary institutions regulating dif­fer­ent aspects of life. Nevertheless, many customary land practices remained intact. Distant from the state, Chin State maintained traditional property institutions with strong communal ele­ments. In addition, its remoteness kept pressures on the land at bay relative to other parts of the country. However, this situation was not impervious to change. Chin State’s customary lands w ­ ere threatened by the market opening that accompanied the transition 134

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period and the passage of the Farmland Law and the Vacant Fallow Virgin (VFV) Land Management Law in 2012, laws created for the lowlands and therefore ill-­ suited to uplands tenure systems. With the transition, as the application of state law and market forces grew stronger in Chin State, communities over the past de­ cade started to notice new threats to their land. Nevertheless, given Chin State’s historically distant state-­society relations, t­here was a low level of awareness of state laws and institutions among local communities. As a result, some of the Chin po­liti­cal elites, such as leaders from the Chin National Front (CNF), an armed group that participated in the 2015 Nationwide Ceasefire Agreement (NCA), and civil society organ­izations (CSOs) based outside of Chin State took the lead in advocating protection of customary land in the context of a national peace pro­cess. This chapter starts with an overview of Chin State from the precolonial to the postin­de­pen­dence era, with a focus on the f­ actors that prevented the state from creating a strongly unified po­liti­cal community. The chapter then describes customary land tenure systems that have been maintained ­until the pre­sent day, as well as the new threats posed to them. This is followed by a discussion of the lack of po­liti­cal opportunities for facilitating an environment conducive to social mobilization in Chin State. The chapter closes with a discussion of the civil society response to nascent land threats led by some of the Chin po­liti­cal elites, reflecting the legacy of the Chin as a weakly unified po­liti­cal community and a society historically distant from the state.

From Tribal Past to Po­liti­cal Entity In 1896, when the British took over the northern part of “Chinland,” a term Chin scholar Lian Sakhong uses to describe what the Chin ­people consider to be their original homeland, they found it marked by po­liti­cal, social, cultural, and religious heterogeneity. Chin society was tribal and ruled by traditional chiefs. Vumson (1986, 32) identified six major tribal groups, including the (1) Asho, (2) Sho, (3) Masho, (4) Laimi or Pawl, (5) Mizo or Lusei, and (6) Zomi or Paite. Southern Chin State, which came ­under British rule ­later, was socially distinct from the northern part. Referring to the Chinbok, Chinme, Chinbon, Khumi, Mro, Matu, and ­others, Lehman (1963, 14) said, “The Southern type has a relatively poor material culture and ­simple social structure; the Northern is more elaborate on both counts.” U ­ ntil the pre­sent day, the government still counts fifty-­three tribes within ­t hese groupings, a number that became increasingly contentious in the years leading up to the 2014 census. Sakhong (2003, xv) argued that, as a result, “­people’s identification with each other was tribally exclusive and their common national identity remained elusive.”

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British annexation in 1896 was soon followed by the arrival of Christian missionaries from 1899 to 1905, which together greatly transformed Chin society (Sakhong 2003, xv). The presence of missionaries was stronger in the north than in the south. “Chris­tian­ity provided the Chin p ­ eople the new meanings and symbols within this pro­cess of ‘formative moment,’ but without ‘a complete break with the past’ ” (Sakhong 2003, xvi). The continuity between traditional Chin religion and Chris­tian­ity was pos­si­ble b ­ ecause of the belief in a supreme being in both systems of thought. Christian conversion contributed to setting the Chin on a path t­ owards detribalization, argued Sakhong. ­Towards the end of British rule, the Chin started negotiations with the interim government of Ministerial Burma for their po­liti­cal rights. The negotiation pro­ cess around the 1947 Panglong Conference contributed to transforming the Chin from a tribal society or­ga­nized according to its numerous tribes to a more cohesive po­liti­cal entity, as the Chin attempted to find their place in the postcolonial context. When signing the Aung San-­Attlee Agreement on January 27, 1947, Aung San agreed to the following: The leaders and the representatives of the ­peoples of the Frontier Areas ­shall be asked [for their opinion], e­ ither at the Panglong Conference to be held at the beginning of next month or at a special conference to be convened for the purpose of expressing their views upon the form of association with the government of Burma which they consider acceptable. (Sakhong 2003, 212) According to Sakhong (2003), many of the Chin leaders wanted to join the Union ­under the condition that it would be structured as a ­union of nation-­states, each with po­liti­cal powers in the administrative, legislative, and judicial spheres. In the end, the 1947 Constitution gave ethnic states dif­fer­ent rights: the Shan and Karenni gained the right to secession a­ fter ten years; the Kachin relinquished this right for the addition of two districts; and the Chin, who received economic aid from Burma Proper, became the Chin Special Division2 (Silverstein 1980). General Ne Win’s administration designated the area as Chin State only on January 4, 1974. ­Under the 1947 Constitution, eight parliament seats in the Chamber of Nationalities ­were reserved for the Chin. The decision-­making pro­cess over who should take up ­these seats was one of the first significant acts by the Chin to abolish a centuries-­old po­liti­cal system of hereditary chiefs and adopt a repre­ sen­ta­tional one, which served as the basis for the construction of a Chin po­liti­cal identity (Sakhong 2003). According to the head of the Falam Township elders, from February 19 to February 21, 1948, delegates came together to create eight

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constituencies, from which one representative would be selected for the Chamber of Nationalities in the new government: Hakah, Falam, Tedim, and Thantlang in the north (to which Tonzong was l­ater added) and Kanpalet, Paletwa, Mindat, and Matupi in the south.3 ­These eight major constituencies foreshadowed the challenge of further unifying the Chin, a theme that persisted for the seven de­cades postin­de­pen­dence. In the de­cades that followed, tribes vied for local hegemony, creating competition and even animosity between and among tribes. This was further evidenced by the formation of the ten Chin po­liti­cal parties, most of them or­ga­ nized along tribal lines, that competed in the November 2015 election. In recent years, several developments helped to advance the debate concerning Chin unity. The 2014 national census presented an opportunity for ­people in Chin State to debate the appropriateness of being labeled “Chin,” which remains a source of division. An advisor to the census, Salai Isaac Khen, informed me that ­those in Tedim Township maintain that they are “Zomi” (“Zo” being a local word to mean p ­ eople) and that “Chin” is not a word in any of the Chin languages, but a name given by the British (also see Vumson 1986). Isaac Khen said that while most p ­ eople acquiesce to being officially categorized as “Chin,” “a minority hold onto their tribal labels for fear of losing their identity.” 4 Tribal chiefs who follow the evolution of this debate are emphatic about the practicality of this term. The chief of the Falam elders explained: “Even the British called us Chins. Chin also includes ­t hose in Magwe, Rakhine, Sagaing and Bago. Chin is a legally known all over the world. . . . ​Living u ­ nder the old names is preventing us from moving forward.”5 Indeed, as w ­ ill be demonstrated in this chapter, Chin po­liti­cal elites recognize the importance of presenting the Chin ­people as a unified nation with concrete po­liti­cal demands in the strug­gle for greater territorial autonomy and protection of Chin customary practices.

Chin State’s Customary Land Tenure Systems Since Chin State’s land politics center around the issue of how its customary land tenure systems remain largely unrecognized and unprotected u ­ nder state law, this section delves into ­t hese systems to reveal how the current land laws do not do justice to their complexity. However, due to the g­ reat variation between Chin tribal practices, it is not pos­si­ble to provide a detailed overview of Chin State’s customary land tenure systems. This section is based on classic and con­temporary research published on the Chin, which is ­limited and tends to give more weight to northern Chin. Therefore, it is impor­tant to bear in mind that southern Chin retains quite dif­fer­ent sociocultural practices, particularly with regard to land owner­ship.

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The remote, mountainous, and infertile terrain in Chin State led to the development of agriculture practices in the uplands that ­were highly distinct from ­those in the lowlands. The territory within a village generally includes watersheds, firewood and timber forests, settlement lands, and shifting cultivation land, which makes up a large part of the village. In most parts of Chin State, as in other highland areas of Myanmar, shifting cultivation, also known as swidden, is the basis of agriculture. As indicated by its name, this type of farming practice involves villa­ gers identifying and clearing a plot to farm e­ very few years and moving regularly, so as to leave plots fallow long enough to regenerate themselves without additional inputs. The number and size of plots may change in a village depending on demography. Many of t­ hese traits have been retained over multiple generations. The Chin preserved many of their customary practices ­after in­de­pen­dence. However, the laws of the Union of Burma pressured local communities, more so in the north than in the south, to adapt to new po­liti­cal realities. Significantly, the 1953 Land Nationalization Act, which nationalized all land in the name of the state, and the 1963 Disposal of Tenancies Law, which sought to break up landlordism throughout the country by making smallholder farmers tenants of the state, led to a break with ­earlier feudal practices in which commoners had to pay fees to chieftain families (Boutry et al. 2018). Since 1962, u ­ nder Ne Win’s socialist regime, the privileged position of chiefs further weakened, and village headmen ­were given more prominent administrative roles, brokering between villages and the state (Boutry et al. 2018). Accompanying the expansion of the CNF, which was founded in 1988, Chin State saw a gradual increase of central state and military presence beginning in 1990. Since then, towns and, to a lesser extent, villages had to increasingly contend with central state laws. Increased state presence was accompanied by stronger market forces, which together impacted the land use patterns in the state (Boutry et al. 2018). To this day, while shifting cultivation continues to be the primary livelihood activity among most ­house­holds, it is less prevalent in areas next to large towns, as more ­people resort to nonfarm livelihoods and enjoy significant remittances from ­family members abroad. Most h ­ ouse­holds still cultivate staples such as corn, rice, and millet for their own consumption, but increasing numbers of farmers are opting to grow cash crops targeted for the Hakha market, the main market in Chin State’s capital. The shift t­ oward commercial crops has been accompanied by privatization of small areas of shifting cultivation land by better-­off h ­ ouse­holds. Despite t­ hese recent changes in land use patterns, most of the land is governed by a tenure system distinct from the private property model dominant in the lowlands. Land control and access in most of Chin State is governed by “rules-­in-­ use,” or normative institutions that ­people use to explain and justify their actions to

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­ thers in the same community but that are often not written down (Crawford o and Ostrom 1995, 831). In the past, ­t hese rules ­were supervised by a local chief, often a descendant of the founder of a clan who acted on behalf of Khua-­hrum, the local guardian god considered the ultimate owner of land (Sakhong 2000). ­Because the chief theoretically owned the land on behalf of the Khua-­hrum, the chief and his council ­were vested with nearly unchallenged power over land administration. The 1896 Chin Hills Regulation demo­cratized land owner­ship and use to a certain extent by taking away chiefs’ hereditary rights to tax village domains (Sakhong 2003). Stevenson, who for a period was the head of the Frontier Areas Administration and an anthropologist who studied the economics of the Chin tribes, observed that u ­ nder the new system, “­limited right of disposal is vested in the individual, since he can gift his land titles to males of his own patrilineal extended f­ amily” (1937, 45). While the passage of the 1896 Chin Hills Regulation l­ imited the powers of the chiefs and made land access more equitable, it did not do away with all large landowners, according to the chief of the Falam elders.6 ­Because some southern townships ­were formerly administered outside of British-­era Chinland, including Kanpalet, administered by what is now Magway Region, and Paletwe, administered by what is now Rakhine State, this law did not reach t­ hese areas. To this day, in many southern townships, the descendants of chiefs continue to claim large parcels of land as their own, thereby creating two distinct classes of landowners in parts of southern Chin State—­landlords and landless. However, ­until the pre­sent day, landlords have by and large granted access to the landless for low rents as a form of interclass reciprocity, explained ­later in the chapter. For the most part, traditional Chin society bears characteristics of peasant socie­ties elaborated on by Scott (1976), who drew on classic texts including Thompson’s (1971) concept of “moral economy” and Chayanov’s (1966 [1925]) insights into Rus­sian peasant h ­ ouse­hold economics. According to Scott (1976, 3), peasant socie­ties live according to a moral economy that informs “their notion of economic justice and their working definition of exploitation.” While they are “not radically egalitarian,” “modest but critical redistributive mechanisms nonetheless do provide a minimal subsistence insurance to villa­gers” (Scott 1976, 5). Using a “safety first” princi­ple, “the peasant cultivator seeks to avoid the failure that w ­ ill ruin him rather than attempting a big, but risky, killing” (Scott 1976, 4–5). As such, rural ­house­holds draw on “an entire range of networks and institutions outside the immediate ­family which may, and often do, act as shock absorbers during economic crises in peasant life” (Scott 1976, 27). Such networks take the form of intra-­class reciprocity—­t hat is, communal ­cooperation—as well as interclass reciprocity arrangements, including t­ hose be-

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tween landlords and their tenants. The weakening of the chief system u ­ nder state administration since the 1960s and the greater reliance on income generation through cultivating cash crops to meet ­house­hold needs led to changes in the way land was managed (Boutry et al. 2018). For example, while the collective labor-­ sharing system was mandated for all villa­gers u ­ nder the chief system, it dis­appeared in some areas as ­house­holds opted for hired ­labor. Nevertheless, cooperative work groups still exist in many villages to this day.7 Cin Khan Lian, a Chin civil society leader who heads the Yangon-­based NGO Ar Yone Oo, said: ­ eople need to be working together, not just to farm but also to care for P livestock, to protect from wild boars, and to take turns harvesting upland paddy as the ripening time is not the same. Usually, ten ­house­holds come together to help harvest, and then they go around to another plot.8 Interclass reciprocity allows for a fluid system of support. In the past, a landlord in Chin State was “in princi­ple required to allow his . . . ​followers to work plots on his land rent ­free” or “rents [­were] nominal and [did] not comprise a share in the crop” (Lehman 1963, 77). However, landlords derived other less tangible privileges from such arrangements, such as social prestige and influence. Salai Cung Lian Thawng, a Chin civil society leader whose f­ amily still owns land in northern Chin, confirmed that t­ hese practices are still in use ­today: My grand­mother used to own land near Falam. Landless neighbors would come in to use her land without needing to inform her in advance. ­There was an understanding that this was accepted, and they would only honor her with a chicken or a pot of wine.9 ­These rules of use are laden with strong spiritual and cultural values, consecrated in several nature worship practices often practiced with the annual farming cycle. This continues to pre­sent time even though many Chin p ­ eople have converted to Chris­tian­ity. Cin Khan Lian said: Southern Chin still practices much spiritual worship. Some rituals ­were formalized into Chris­tian­ity. Prior to the land preparation, ­people sacrifice a mithun or pig to please the spirits and the land. Nobody is allowed to enter the land that is burned in the first few days, to show re­spect to animals that die t­ here.10 According to a study of land practices in northern Chin State, the Food Security Working Group (FSWG 2011) found that h ­ ouse­hold and kinship networks are

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foundational to social organ­ization and therefore to land systems. Thus, rights are derived from ac­cep­tance into a social network, usually through birth and marriage. Village land is meant to be used only by t­hose residing in a locale. Land plots could be inherited or allocated to h ­ ouse­holds through a lottery system on a yearly basis when plots are subdivided. The Ethnic Partnership for Land and Natu­ral Resources, a network of ethnic minority representatives, carried out a lit­er­a­ture review of customary land practices in Chin State, with a focus on practices in the north (EPLNR 2016). The review found that land use rights combine ele­ments of collective and individual rights, with more of the land still managed collectively. More specifically, customary land tenure is “an intricate system of conferred, nested rights oscillating between communal and individual rights on land management” (Boutry et  al. 2018, 130). According to the EPLNR study, permanent individual areas managed by families include irrigated terraced land, unirrigated terraced land, and orchards. Shifting cultivation areas tend to be managed collectively. ­These areas are divided into large plots, with a new one cultivated by the village each year or ­every few years but left to fallow for several years. In another study about Kanpalet Township in southern Chin State, land is left fallow for about nine years ­after one year of cultivation, a practice that has not changed for de­cades. In the past, land that was used for five years was left fallow for up to forty years (Lehman 1963). The EPLNR study also found that, with varying degrees of cooperation, villa­gers work together to create a path to the chosen plot for the village, build a temporary settlement, and clear the trees. Grazing land and village forests that supply firewood and timber are collectively managed. Almost ­every village owns some grazing land, although villages with insufficient areas must request permission from other villages to access their land. In addition to setting limits on land use, communities maintain other environmentally sustainable practices, including replanting trees, leaving trees around streams to protect the watershed and around roads to prevent erosion, and making firebreaks when clearing forests with fire (San Thein 2012). Thus, in contrast to arguments put forth by state planners that claim “slash and burn” farming is environmentally harmful, swidden agriculture has the potential to be environmentally sustainable, as shown in other countries (Vien et al. 2006). Given the high rate of out-­migration, Chin State has not experienced net population growth over the past fifty years. Nevertheless, localized areas exist where recent population growth and climate change put stress on this type of production system and on the environment (POINT 2015; San Thein 2012). Villages with rising populations close to larger towns have been shortening the fallow period, thereby reducing land fertility.

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While a moral economy has traditionally sustained relatively easy access to land in Chin State, even in southern villages where chiefs hold large tracts of land, the market opening in the past de­cade changed traditional social relations to land. As more investments entered this remote area, a small number of landholders with more information and po­liti­cal capital chose to respond to the “insurance” offered by the markets instead of that traditionally offered by the community (Popkin 1979). In other words, ­t hese landholders used the new land laws to carve out and formalize land plots as private property. Yet, the infiltration of the market into ­t hese places did not happen on its own. Hall et al. (2011, 147) say that “it takes ­human agency—­socially situated practice—to create and sustain the conditions necessary for a market to operate, and to insinuate ‘the market’ into intimate relations to the point where it overrides other considerations.” The head of a Chin social ser­v ice organ­ization that was supporting communities to secure their collective land tenure lamented to me that t­ hose who have connections are using it to benefit themselves at the expense of the collective good.11 The case of the Mwe Taung nickel mine proj­ect demonstrates how the formalization of private property and an opening market threaten Chin State. In 2012, villa­gers started to see signs bearing the name of the North Mining Investment Com­pany go up, marking off land for a proposed mining site, around seventeen villages in Tedim Township at the eastern foot of the Chin Hills.12 As villa­gers ­were at a loss for how to stop the development, they reached out to CSOs based in the neighboring town of Kalay. Soon afterward, the CSOs, with funding from Yangon activists, formed the Chinland Natu­ral Resources Watch Group (“Watch Group”) to advocate against the proj­ect. The mine proj­ect was a joint venture worth USD 486.7 million between a Chinese com­pany, with 90  ­percent of the shares, and the Ministry of Mines.13 The mine proj­ect was projected to generate seventeen thousand tons of nickel annually, but its construction would have exacted high social and environmental costs on villa­gers. A member of the Watch Group told me that the group carried out numerous public consultations and meetings with communities, po­liti­cal party members, and religious leaders; attempted to negotiate with the com­pany; and sought help from local authorities.14 ­These efforts ­were met with ­limited support from government officials, who w ­ ere more intent on generating revenue for Chin State. Nevertheless, the proj­ect came to a halt in 2014. A former employee of the proj­ect cited failed negotiations between the Chinese com­pany and the Ministry of Mines, as well as the declining market price for nickel (Einzenberger 2018). In the absence of statutory recognition of customary lands, however, communities ­here and throughout Chin State remain vulnerable to ­future displacement. The need to secure l­ egal protection remains an urgent issue for Chin cultivators, b ­ ecause “in the

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absence of national welfare provisions, even a tiny patch of land is a crucial safety net” for the low-­skilled poor with few alternatives to farming (Li 2011, 295).

Po­liti­cal Opportunities (or Lack Thereof) Historically, state actors have been condescending t­ owards shifting cultivation on the grounds that it is both ecologically destructive and antithetical to modernity. This was evident in the Forest Department’s 2000 handbook: It is now being recognized that any further expansion of shifting cultivation on forest land would be at the cost of environmental and ecological stability. . . . ​It w ­ ill be pertinent to mention that in the absence of concerted efforts to rehabilitate both the shifting cultivators and the shifting cultivation areas, ­these areas would be rendered unproductive and lost forever. This paved the way for the government to introduce the Upland Farm Mechanization Proj­ect in 2002. Implemented by the Department of Agricultural Mechanization, the proj­ect’s objective was to transform shifting cultivation carried out in the uplands to the lowland model of permanent farming through field terracing and irrigation. From 2002–2008, a government fund provided farmers with MMK 12,000 per acre to develop terracing, but this amount was only a fraction of the cost needed to convert upland fields into terraced plots and purchase the inputs, such as fertilizer, needed to cultivate the fields. A 2012 official report shows that much of the 7,114 acres included in this proj­ect was not made arable due to the insufficiency of resources allocated to it (San Thein 2012). The 2012 Farmland Law, before it was amended in 2020, specifically states that the practice of shifting cultivation should be replaced by permanent cultivation on individual plots. The amendment recognizes shifting cultivation as a type of farmland use, but failure to recognize customary tenure systems contradicts the law’s intention. Similarly, the 2012 VFV Land Law did not recognize customary land ­until its amendment in 2018, but even the newer version does not include a clear definition nor procedures for recognizing customary land. The director general–­Settlement and Land Rec­ords Department (SLRD) who presided over the passage of the 2012 Farmland Law said, “I d ­ on’t agree with allowing shifting cultivation. Since the BSPP [Burma Socialist Program Party], our government laid down this policy. B ­ ecause of environmental prob­lems, we c­ an’t promote it.”15 Nevertheless, shifting cultivation remains the preferred cultivation practice throughout Chin State, with only a fraction of land recognized as private plots. According to unpublished data from the SLRD, by 2016, only 28,256 land use

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certificates for private agricultural plots had been given to 24,075 out of a total of 91,387 ­house­holds.16 However, many of ­t hese ­were for small homestead plots and did not encompass the larger communal areas. As a result, most of Chin State’s land fell into a ­legal vacuum a­ fter the passage of the 2012 land laws. Without statutory protection, most of the land defaulted to VFV land. According to an SLRD inspector in Chin State, “VFV land is e­ ither cultivated or uncultivated. The land that is left fallow by villages could be considered for a VFV land lease, and it is left to the discretion of the VFV committee at state [regional] or national level.”17 The drafting of the 2016 National Land Use Policy (NLUP) introduced new thinking on this issue. As described in chapter 3, ethnic co­a li­tions advocating for statutory protection of customary land argued that their systems embody collective values beyond individualized market values, including a strong re­spect for nature, a need for place-­based identity, and social interconnections. Through this framing of “opposition norms,” national actors called attention to impor­tant issues that “resonate with broader public understandings and are a­ dopted as new ways of talking about and understanding issues” (Finnemore and Sikkink 1998, 895). Over time, such discourses have the potential to persuade even more p ­ eople to adopt similar views. Ongoing policy debates in the past de­cade gradually led to attempts at legislative change. Even the former director general-­SLRD, who initially opposed the practice of shifting cultivation, conceded that the issue needed to be addressed. He said: This prob­lem is particularly big in the uplands like Shan State. Th ­ ere are many areas where kwin maps ­were not made for ­t hese areas where they have farmed for generations. If the community has so many years in t­ hese areas, the authorities should stand by the farmer. But t­ here are prob­lems in this system. The ethnic minorities claim this land—­I understand this. But how can we do it? Year by year we survey ­these areas for the crop output and to collect taxes. We need remote sensing to map ­t hose areas that are being used. We should consider this a big issue in the ethnic states.18 Along ­these lines, the former director general–­Forest Department who drafted the 1995 Community Forestry Instructions, and who had a leading role in revising it in 2016 to be more responsive to community needs, suggested to me that it could be a mechanism that communities use to protect their customary land. He said that the government’s policy was never to drive out communities practicing shifting cultivation. He explained that he recognized that the practice is interlinked with food security, culture, and religion, and that the Forest Depart-

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ment intended to help upland communities create permanent agroforestry plots, in which they could continue their farming practices.19 In contrast to the Delta regional government, which was pressured to put a halt to more investments in the early years of the transition and to resolve thousands of land conflict cases, the Chin regional government was much less active on this issue. The reason was that ­under the military regime, few land concessions ­were granted in Chin State. Investment inflows ­were modest, largely due to the state’s geo­graph­i­cal isolation, poor infrastructure, and few natu­ral resources relative to other parts of the country. Second, even when Chin State authorities ­were called upon to resolve the handful of land conflicts that arose from the granting of community land to investors, the Chin regional government had l­ittle power to challenge national land laws that did not recognize customary land. Third, since Chin State is the poorest area in the country, many Chin State authorities believed that they should incentivize investors to come invest in the state’s “VFV land,” rather than deter them by granting sweeping land rights to the communities. Without the same incentives that motivated officials in the Delta, nor much power to oppose higher levels of government, few officials in the Chin State government took the risk of challenging national laws and policies. Weak po­liti­cal opportunities in Chin State created an environment not conducive to the development of grassroots rural movements.

Civil Society Response Even if empirical realities show that many local communities may choose to operate “­under the radar” to avoid confrontation with state power, one of the themes that runs through this book derives from democ­ratization theory, which assumes that strong civil society is crucial for reinforcing demo­cratic institutions as a mechanism for checking state power (Diamond 1994; O’Donnell and Schmitter 2013). A check on state power ensures that rules are applied and enforced consistently for all citizens, who also have accessible channels to shape them. Chin communities, like other ethnic minority communities, have had l­ittle say in the design of state laws governing land. ­Because overtly po­liti­cal civil society was suppressed throughout the country ­until the start of the transition period, civil society groups in Chin State revolved around the church, including youth groups and ­women’s groups, and focused on social ser­v ices. Given lower pressures on the land relative to other areas and the dispersed nature of communities in Chin State, Chin civil society groups traditionally received less funding from Yangon-­based groups to or­ga­nize rural networks. In addition, collective action tends to be difficult for rural communities living in remote areas ­because

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they need to spend a disproportionate amount of time and energy on meeting survival needs (Fox 1993). The former program man­ag­er for Ar Yone Oo described to me the challenges of mobilizing local communities in Chin State: The reason why t­here’s l­ittle outreach is mainly b ­ecause of the ­transportation. . . . ​The UN used to give a lot of per diem for their participation. So now, if they d ­ on’t get paid, they d ­ on’t come. Also, they have heard about the land grabbing, but they ­haven’t directly experienced it yet, so they ­don’t know if they should join the meetings.20 This description demonstrates that even though most of Chin State’s land has no ­legal protection, communities that w ­ ere historically managed at arm’s length from the state had ­little to no awareness of the threat to their land. The community members’ lack of awareness about state laws and institutions and the relevance to their lives revealed something even more fundamental about their self-­perception: many w ­ ere not aware of themselves as full citizens entitled to make demands on the state. In terms formulated by Chatterjee (2004), this situation limits the development of civil society. According to him, it is only when the strug­gle for survival becomes dire that p ­ eople are forced to break from their typically apo­liti­cal lives to temporarily enter po­liti­cal society, wielding a range of strategies to negotiate with the state.21 While t­ here w ­ ere a few exceptions in Chin State, Chin communities and local civil society did not take the lead in defending their customary land. Community-­based organ­izations in Chin State operate with minimal h ­ uman and financial resources, while remoteness and patchy telecommunications prevent them from being able to stay abreast of impor­tant developments in the rest of the country. A founder of the Chin Green Network told me that it was created in 2013 by a few Baptist ministers interested in orienting their church t­ owards environmental issues.22 In 2015, its network had forty-­seven organ­izations working on the environment, with some working on land issues. That year, the secretary of the Baptist convention announced that part of religious ser­vice is to uphold justice, giving more justification to the pastors to get involved with land and environmental issues. The Chin Green Network carried out training on land issues across Chin State, covering the 2012 land laws and the United Nations Declaration on the Rights of Indigenous ­Peoples (UNDRIP). This group was active in holding community consultations that fed into consultations for the NLUP in 2014–2015. However, conservative leadership in the church criticized the pastors for their overt involvement with politicized issues. Eventually, the network was prevented from being involved with land conflicts.

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Given the nature of civil society in Chin State, the role of Chin po­liti­cal elites, including CNF and Yangon-­based civil society groups, became more pronounced. In places where communities have low po­liti­cal awareness and or­ga­nized civil society is thin, the role of “intermediate social and po­liti­cal institutions which link rural and national politics” (Fox 1990, 2) is even more crucial for raising the concerns of remote communities to policymakers. They can help rural communities in “overcoming locally confined solidarities, representative bargaining power and access to information” (Fox 1996, 1091). The better resourced CSOs working on Chin State had broader national agendas and operated from Yangon or from Kalay Township at the base of the Chin Hills to stay connected to the rest of the country. Founded in 1995 by Chin youth leaders and operating from India u ­ ntil 2013, the Chin H ­ uman Rights Organ­ization (CHRO) has been one of the strongest proponents of the use of international ­human rights law to strengthen ethnic minority rights through legislative reform. The Chinland Natu­ral Resources Watch Group, mentioned ­earlier, monitored and supported the resolution of natu­r al resource disputes between communities and investors. Ar Yone Oo, another organ­ization active in Chin State, worked to strengthen upland communities’ land access,

Civil society organ­izations and state officials meet to discuss ways to secure community lands in Chin State in 2015. From author’s collection

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improve cultivation practices, streamline market linkages, and advocate appropriate policies. Chin elites involved with national-­level politics and the peace pro­cess also played a key role in shaping the debate around customary land. They raised the profile of issues not well articulated by the affected communities themselves, becoming “catalysts for change as they draw on and articulate the ideas of discursive communities and co­a li­tions” (Schmidt 2008, 310). Since institutions “pre­sent dominant models for how interests can be realized” (Nee and Swedberg 2005, 797), some of the Chin po­liti­cal elites sought to reshape ­t hese institutions to accommodate the norms encompassed by traditional land systems. On October 15, 2015, the CNF23 participated in the signing of the Nationwide Ceasefire Agreement. While it was largely a military-­designed road map to negotiate peace on the military’s terms, this agreement nevertheless laid the groundwork for the country to move ­towards a federal model of government to be reflected in an amended constitution. ­Under the NCA, ethnic groups challenged the country’s unitary system of government and demanded more power sharing on the basis that they ­were in­de­pen­dent nations and equal parties in the founding of the Union of Burma. Thus, they invoked the symbolism and language of nations, along the lines of how Anderson conceptualized the nation as an “­imagined po­ liti­cal community” with a sovereign delimited territory (1991). ­These sentiments are encapsulated in the words of Lian Sakhong, a Chin academic turned politician with a leading role in the national peace pro­cess: Let me argue that what we—­ethnic nationalities in Burma—­are fighting for is a kind of “internal self-­determination.” . . . ​So, let me be very clear that individual rights is not enough for us; we need our collective rights as a ­people . . . ​and, above all, all of us have territorially clearly defined homelands and nations since time immemorial.24 Motivated by this sentiment, the Chin community convened at the 2013 Chin National Conference (CNC) in Hakha to discuss the f­uture of the Chin ­people as a po­liti­cal community. Although it was boycotted by some parties that saw it as controlled by the Lai ethnic group, the dominant group in the capital of Hakha, the conference was the first event in which nearly all Chin groups had re­ united since the Chin came together in Falam Township to elect members of parliament in 1948. On November 15, 2013, two years before the signing of the NCA, 571 delegates, representing nearly all the major Chin tribes and drawn from Chin State government, po­liti­cal parties, civil society, and religious entities, con-

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gregated. Among other priorities, the conference statement addressed the need to protect customary land practices: 1. The CNC urges that the [Chin] State government be allowed to play a more impor­tant role when it comes to rights and issues related to land and natu­ ral resources, that priority be given to the consent and involvement of the indigenous ­people . . . ​and that transparency and accountability be ensured when dealing with issues related to land and natu­ral resources. 2. The CNC agrees that Chin tribal customary laws be collected, documented, published, and amended as needed in accordance with current contexts and practices.25 ­These statements demonstrate the Chin ­people’s desire for more power sharing between central and regional governments in managing the land and natu­ral resources of Chin State. They also demonstrate the Chin p ­ eople’s wish to update and formalize their customary laws to meet their needs in a rapidly evolving sociopo­liti­cal context. The statement also alludes to the need to reconcile customary laws with statutory laws.26 Commenting on the interplay between statutory and customary law, the chief of the Falam elders said: Federalism is sharing the power with the government, but land and natu­ ral resources must lie in the hands of the p ­ eople of the land who cultivate it. We accept that the government owns the land as part of a country, but it d ­ oesn’t mean giving them the power to manage the land. This right was given to us by the Chin Hills Act.27 At the same time, t­ here was consensus that the Chin Hills Act must be updated to the present-­day context.28 The joint secretary-general of the CNF, Dr. Sui Khar, opined, “I always say that indigenous land is dynamic. We need to adapt it to the modern era. The princi­ples of what is indigenous is equity and environmental protection.”29 Cin Khan Lian echoed this perspective: “We want to reinforce the Chin Hills Act, but some portions are not reliable or useful for the pre­sent time. The act needs to be modified.”30 As explained by Maithin Yumon, director at CHRO, the updating pro­cess means “discussing, debating and agreeing within the community about ‘what suits us best?’ At the same time, we need to update t­ hese practices to modern standards, such as the integration of more gender equity into land owner­ship. When it comes to gender equity, we still have a lot to do.”31

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­After attempts to update the Chin Hills Act by members of the Chin State Parliament u ­ nder the Thein Sein government failed, Chin civil society again attempted to document, review, and amend Chin customary laws in a three-­day workshop held in May 2018 in Hakha. Facilitated by CHRO, Ninu ­Women in Action Group, and Cherry Foundation, the workshop sought to document the customary practices of all Chin groups; to rewrite the Chin Special Division Act based on this information; and to utilize the outcomes to advocate for statutory recognition of Chin customary laws, including t­ hose governing land. Difficulties in this pro­cess included relying on oral transmission of laws, balancing standardization with diversity in practices among groups, and updating practices to modern standards.32 While many obstacles stood in the way of unifying a historically fractured Chin polity, the strug­gles in the past de­cade made it evident to the Chin that they would have to continue cooperating to achieve their vision of gaining full rights to the land. State policy has historically been antagonistic to customary land tenure systems in Myanmar. The introduction of the 2012 land laws and the recent increase of investments into Chin State raised the level of the threat to customary land. On the other hand, the passage of the 2016 NLUP and the signing of the 2015 NCA created po­liti­cal opportunities for the Chin to engage in official channels to influence land institutions. However, given the low levels of po­liti­cal awareness and engagement on the part of rural communities, some of the Chin po­liti­cal elites played a dominant role in land politics in the past de­cade. In addition, the convergence of interests over territory made it evident to the Chin that continued effort would be needed to create and advance a unified po­liti­cal position within a historically fractured society. Since the coup in February 2021, the national dialogues to work out the power sharing architecture ­under the NCA came to a halt. What­ever pro­gress was made ­towards the protection of Chin ­people’s territory in the previous de­cade has leveled off and even reversed. The fate of ­people’s relationship to land, ­whether in Chin State or any other part of the country where customary land tenure systems are prevalent, remains uncertain.

C HA P T E R SE V E N

Kayin State or Kawthoolei Dual Administration

Within the distinct historic, po­liti­cal, and geo­graph­i­cal contexts of Kayin State and the Karen areas beyond the state’s official bound­aries, state-­society interactions resulted in land politics that w ­ ere dif­fer­ent from the land politics of the Ayeyarwady Region and Chin State, as illustrated in this chapter. Land politics in Kayin State and the Karen areas ­were influenced by the decades-­long civil war, which took root in 1948, between the Government of Myanmar (GOM) and the Karen National Union (KNU) (Gravers 2015). The ­battle for control over territory resulted in the present-­day situation of dual administration of land by both authorities. I use the term “dual administration” to refer to governance arrangements between the government and the KNU and the term “mixed control,” which appears ­later, to refer to governance arrangements between the government, the KNU, and other armed groups. Kayin State had 1,576,000 p ­ eople in 2015 (GOM 2017, 24), mainly of the Karen ethnicity. However, this number represents a minority of the total Karen population in the entire country, which is scattered throughout most of the southern region (South 2011). While t­ here are seven sub-­g roups, the two main ones are the Sgaw and Plong Karen, distinguished by dif­fer­ent languages and cultures; most Sgaw Karen are Christian, while the Plong Karen are mainly Buddhist. The government divides Kayin State into seven townships: Hpa-­An (where the state capital with the same name is located), Kawkareik, Kyainseikyi, Myawaddy, Hpapun, Thandaunggyi, and Hlaingbwe. However, the KNU has an entirely dif­ fer­ent set of maps. The area called Kawthoolei, governed by the KNU, does not correspond to government bound­aries and instead straddles Kayin State and parts of Mon State, Bago Region, and Tanintharyi Region; the area is or­ga­ nized into seven districts, each with twenty-­eight townships, with names distinct from the seven townships the government identifies on its maps (South 2011, 10). Each of the districts corresponds to one Karen National Liberation Army (KNLA) brigade, and they differ in terms of allegiance to KNU central policy, fighting strength (for example, the fifth brigade has been militarily strongest), and po­liti­cal posture t­owards the central government.1 Thus, the KNU 151

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was divided within itself as leaders vied for legitimacy and influence, and t­ hese divisions at times led to seemingly contradictory approaches ­towards the central state (Brenner 2019). KNU’s administrative system is like that of a one-­party system. Leadership— in the form of administrative committees for each of the seven districts, all twenty-­ eight townships, and e­ very village tract and village—is elected in an upward fashion (Jolliffe 2015, 46; also see Keenan 2013). This means that each level of administration is elected through congresses of representatives from the level below. Unlike smaller armed groups such as the Chin National Front (CNF), which do not have developed governance structures, KNU’s administrative system consists of fourteen departments covering agriculture, alliance affairs, breeding and fisheries, defense, education, finance and revenue, foreign affairs, forestry, interior and religious affairs, justice, mining, organ­ization and information, health and welfare, and transport and communications (Jolliffe 2015, 47). The fully developed administrative structure of the KNU fuels a contest with the government for control of territory. From 2012, ­after the signing of the bilateral ceasefire, to 2020, this contest intensified, in terms of both controlling land for investment and titling community land. On the ground, communities had to navigate layers of often-­conflicting authority between the GOM and the KNU in their quest to secure land tenure. The Karen case inverts the question about the state-­citizen relationship in a highly fragmented pro­cess of state building. Instead of ­whether and how the state recognizes the rights claims of citizens, the issues discussed in the Delta and Chin cases, the Karen case raises an altogether dif­fer­ent question: In a context where the GOM is challenged by KNU’s parallel state-­like apparatus, to which authority do citizens turn to claim their rights, and which authority has the wherewithal to effectively respond? In such a situation, how do conflict-­a ffected communities, many of which did not interact with the central government u ­ ntil recently, engage po­liti­cally to demand that rules be consistently and fairly applied to secure the communities’ land claims? This chapter first explores the roots of a Karen nation, leading up to how the KNU built its own administrative system, including that governing land. Next, the chapter looks at the extent of land confiscation in the tenuous post-2012 ceasefire context. As opposed to Chin State, where new confiscation pressures w ­ ere less pronounced in the decade of transition, Kayin State saw a surge of “ceasefire capitalism” as investors took advantage of a fragile ceasefire to enter the border areas to acquire land and other natu­ral resources (Woods 2011). This is followed by a discussion of po­liti­cal opportunities created by the ceasefire. The chapter ends with a discussion of civil society strategies used to secure their land claims.

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Building Kawthoolei Building a F ­ ree State for the Karen ­ owards the end of British rule, most ethnic minorities, including the Karen, asT pired to return to the levels of autonomy they enjoyed prior to colonial rule. But while the Shan, Chin, Kachin, and Karenni ­were in­de­pen­dent nations, some more loosely formed than others, before the arrival of the British, the Karen case was dif­fer­ent. Although the Karen ­were never conquered by the Burmese kings, unlike the Mon and Arakan, a majority of the Karen lived alongside the Burmans in the lowland deltas and paid tribute to the Burman kings (Thawnghmung 2012). Nevertheless, Karen leaders w ­ ere not dissuaded from their dream of building an autonomous Karen nation. However, without backing from the British for this proj­ect, the Karen, along with the Mon and the Arakan, w ­ ere treated as subjects of Burma Proper and given repre­sen­ta­tion in the new parliamentary government (Thawnghmung 2012). In response to ­these events, the KNU was formed in 1947 alongside the Karen National Defense Organ­ization, which was replaced by the KNLA as the KNU’s official armed wing in 1950.2 Karen leader Saw Po Chit said, “to yoke together two such nations u ­ nder a single state, one in numerical minority and the other as a majority, must lead to growing discontent and final destruction” (Chit 1947  in Smith 1999, 87). To protect the Karen as an in­de­pen­dent nation as envisioned by its revolutionary leaders, its first general secretary, Thra Tha Hto, in 1948 said, “Karens want to make pro­gress for their own ­people. If we d ­ on’t have our own country, we w ­ ill be like a plant growing u ­ nder a shade. The Karen p ­ eople could easily dis­ appear in 100  years if we ­don’t have our own separate in­de­pen­dent state” (Hto 1948 in Thawnghmung 2012, 38). On July 19, 1950, KNU Chairman Saw Ba U Gyi, called a congress meeting at which he changed course from pursuing a ceasefire with U Nu and General Ne Win to calling for armed strug­gle (Thawnghmung 2012). He declared that revolution would be the only way to achieve greater autonomy for the Karen nation. Saw Ba U Gyi’s four princi­ples have inspired the KNU through seven de­cades of armed strug­gle: (1) surrender is unthinkable; (2) ­there must be full recognition of any Karen state;3 (3) the KNU must retain its arms; and (4) the Karen ­shall decide their own po­liti­cal destiny (Thawnghmung 2012). As a result of taxes on the border trade, the black market, and logging deals, the KNU remained one of the best or­ga­nized and well-resourced armed organ­ izations u ­ ntil the 1990s (South 2011, 14), controlling broad “liberated zones” across Kayin State, parts of the Bago Yoma range, and even the Ayeyarwady Delta (South 2011, 8). However, several f­actors culminated in the 1990s that weakened the organ­ization’s territorial control. ­These included the military government’s

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stocking up on war ammunitions a­ fter a sell-­off of natu­ral resources to Thailand; the Chinese government’s switching of support from the Communist Party of Burma to the military government; and the ceasefires that w ­ ere negotiated between the State Law and Order Restoration Council (SLORC) and twenty-­three armed organ­izations from 1989 to 1997 (Smith 1999). Th ­ ese f­actors allowed the military to concentrate its forces on the KNU and to intensify a “four cuts” strategy that started in 1969 and continued for decades to eliminate insurgents’ food, supplies, recruits, and intelligence, resulting in their elimination from the Delta and an overall weakening of the insurgency (Thawnghmung 2012; also see Maung Aung Myoe 2009, 25–26). The KNU was dealt a severe blow when a faction of its soldiers defected to form the Demo­cratic Karen Buddhist Army (DKBA) ­because of grievances about perceived corruption and discrimination by the KNU’s primarily Christian leadership (South 2011, 8). Soon afterward, in 1995, the KNU headquarters in Manerplaw fell, leading to an increased outflow of refugees and further defections, a situation that the Tatmadaw fanned by playing one group against another. A ­ fter the fall of Manerplaw, the KNU continued to lose territorial control. Though it tried several times to negotiate ceasefires with the military government, not ­until 2012 was the KNU able to sign a bilateral ceasefire agreement with the Thein Sein government. On October 15, 2015, the KNU took part in the signing of the Nationwide Ceasefire Agreement (NCA), together with seven other ethnic armed organ­izations (EAOs), ­after which the KNU issued a statement declaring its intent to continue administering areas ­under its control.4

Diversity in the Karen Experience Karen ­people’s experience with conflict and dif­fer­ent types of authority have influenced their identification with the Karen nation ­building proj­ect and their choice of strategy when interacting with a highly complex po­liti­cal system. While some areas are clearly ­under KNU control, South (2011, 11) says that “in real­ity, areas of disputed authority and influence blur into each other, with frontiers shifting over time in accordance with the season and the dynamics of armed and state-­society conflict.” Further complicating this situation is the presence of other armed groups, including DKBA, Karen National Liberation Army-­Peace Council (KPC), and the New Mon State Party (NMSP) in neighboring Mon State, as well as sixteen Border Guard Forces (BGFs) and at least four known ­people’s militias (Jolliffe 2015, 45–46). The BGFs were members of ethnic armed organ­ izations that agreed to come ­under the control of the Tatmadaw, while ­people’s militias are paramilitary groups created by the Tatmadaw at the village level and provided with basic training and weapons.

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While ­t here has been no comprehensive study to validate this finding, several studies indicate that ­t hose living in mixed-­control areas face greater levels of insecurity. This is ­because “without a coherent, unitary system of governance for ­these territories or clear demarcations to separate them, local communities remain burdened with multiple tax regimes, and the difficulty of managing relations with rival armed actors” (Jolliffe 2015, 60). P ­ eople living in t­ hese areas have for de­cades been subjected to exploitation, including taxation, forced recruitment, and portering for dif­fer­ent armed organ­izations, especially the Tatmadaw and BGFs, but also some EAOs operating in their area. In response, villa­gers ­adopted a range of coping mechanisms, including acquiescing, bargaining, evading, and fleeing (Malseed 2009). ­People fleeing led to the proliferation of camps of mostly Karen refugees along the Thailand-Myanmar border. As of 2018, the Border Consortium (2018) estimated 162,000 internally displaced ­people in the southeast, and the United Nations High Commissioner for Refugees (UNHCR) verified 97,345 refugees in the Thai camps.5 ­There is a distinct difference between the Karen who lived in areas of open conflict and t­ hose who lived away from it, whom Thawnghmung (2012) calls “the other Karen.” Of them, she says that “although most Karen express a certain level of distrust, prejudice, and suspicion t­ oward Burmans, relations between other ­Karens and Burmans have been generally f­ree of vio­lence, and even friendly at times” (Thawnghmung 2012, 71). While Karen living ­under Myanmar government control did not engage in insurgency activities, many tried to bring change within the system, such as t­hose who formed non-­governmental organ­izations (NGOs) or po­liti­cal parties. In 2009, the two most prominent parties w ­ ere created: the Kayin ­People’s Party, with a greater presence in Yangon and the Delta, and the Ploung-­Sgaw Demo­cratic Party, with a greater presence in Kayin State.6 ­These parties won seats in the 2010 election but, except for one state legislature seat won by the Kayin People’s People, failed to win any in the 2015 election. Nevertheless, the “other Karen” also hold strong feelings t­ owards the preservation of the Karen identity, and the majority tend to support the KNU’s cause. Many consider the KNU as “liberators,” even if they would not join the armed re­sis­tance (Thawnghmung 2012, 72). “Many ­people still uphold the idea of a Karen state and value the KNU’s role. Many communities are dependent on them, and ­t here is a high ac­cep­tance of the leaders in the KNU-­controlled areas,” explained a member of the Karen Unity and Peace Committee, a network set up to unify Karen across the country.7 On the other hand, some Karen living outside insurgent areas do not see the KNU as representing them. The head of one Yangon-­ based Karen religious association complained to me, “I d ­ on’t see the KNU is the government of the Karen. . . . ​KNU lost esteem and did not prove themselves with

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po­liti­cal capacity. They split five times. The chair and general secretary are on one side; the vice-­chair and joint secretary are on another.”8 This brief history illustrates how the strug­gle to build a ­free Karen nation led to seven de­cades of civil war and the fragmentation of a pan-­Karen identity. Out of this history also arose a parallel administrative structure, including for the administration of land.

KNU Land Administration The Thailand-­Myanmar border in the 1990s was largely controlled by EAOs, with the larger EAOs governing their areas like in­de­pen­dent states. The EAOs provided some ser­v ices, which ­were paid for with revenues from logging, mining, trade, and regular taxing of villa­gers. A 2015 Asia Foundation report on dual administration found: In many areas, ethnic armed actors have much deeper relations with local communities than the state and, in numerous cases, have been the only authorities to administer their regions in the country’s 67-­year history. . . . Most ethnic armed actors have detailed constitutions and administer their areas with systems similar to t­ hose of one-­party states. They use their own demarcation and mapping systems, often with l­ ittle or no resemblance to ­t hose of government. (Jolliffe 2015, 1) In the past, the KNU kept the military state at bay through armed conflict while seeking to establish the KNU’s authority in its areas of control. With the ceasefire, and the growing presence of the government and other economic actors, the KNU soon realized that it needed more than revolutionary ideology to prop up the vision of a Karen nation; the KNU needed to maintain its authority through more robust administrative structures. ­These efforts by the KNU reflect the “recursive constitution of property and institutional authority” (Sikor and Lund 2009, 2), whereby the “the pro­cess of [­people] seeking authorizations for property claims also has the effect of granting authority to the authorizing politico-­ legal institution” (Sikor and Lund 2009, 1; also see Lund 2011). In other words, if the KNU could more effectively secure property rights for Karen communities, it would be able to strengthen its authority and legitimacy in areas where the government competes with the KNU for control. Therefore, since 2012, the KNU accelerated efforts to title the farmland and forests of communities in its control areas. One of the goals of the KNU Land Policy, updated in 2015, poignantly says: “For Karen civilians to be able to use their lands in­de­pen­dent of Burmese government law” (KNU 2015, 1).

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A soldier stands guard over a forest ­u nder the Karen National Union’s control. From author’s collection

Certificates ­were given for farmland and community forests, while reserve forests, wildlife sanctuaries, herbal forests, and customary land areas ­were demarcated. By the end of 2017, the Karen Agriculture Department (KAD) had issued 68,530 land titles covering a total of 372,303 acres of farmland, but t­ hese numbers continued to rise as the KAD increased its efforts in land titling throughout its control areas (KESAN 2017). The KAD reaffirmed the importance of issuing land titles at its annual meeting in June 2018, where the department head said that this was in response to the rising demand for titles from communities, as well as the threat from the sale of untitled lands deemed by the GOM to be “public” but often claimed by communities.9 ­Under the KNU’s 2008 Forest Policy, which was updated for the 2020 KNU Congress, the Karen Forest Department (KFD) established 147 community forests totaling 116,949 acres, with 115 of them already registered (KESAN 2017). Staff at the Karen Environmental and Social Action Network (KESAN), an NGO that works closely with the KNU on land and forest management, told me that they ­were assisting the KAD to develop a registration system for customary land.10 In December 2018, as a partnership between the KNU, KESAN, and the communities in Mutraw District, the Salween Peace Park was launched, whose charter upholds “the ecological and cultural integrity of land areas considered to be

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ancestral domain.” Spanning 1.4 million acres, the Peace Park contains 132 customary land holdings, twenty-­ seven community forests, and three wildlife sanctuaries.11 As part of the bilateral ceasefire on April 6, 2012, between the GOM and KNU, both sides agreed that land certificates given by the KNU would be acknowledged, and customary land owner­ship as well as the prob­lem of internally displaced persons (IDPs) would be handled through negotiation.12 According to the KNU’s minister of justice, this was interpreted as an agreement between the parties to the following: 1. Each party w ­ ill title the land u ­ nder its authority. 2. In dual administration areas, titling depends on which authority can gain access. 3. Support w ­ ill be given to the resettlement of IDPs and refugees. If t­ here are no documents, authorities w ­ ill rely on customary agreements among communities. 4. Land documented by the KNU ­w ill be recognized by the government.13 While this seemed straightforward, the real­ity on the ground was much less clear. As the government gained more control over territory, many areas came ­under dual administration. Depending on which authority exerted more control in a township, the other had to get permission to title in the same area.14 Despite knowing that seeking government certificates could weaken the KNU’s authority, villa­gers in dual administration areas attempted to secure the strongest form of protection for their land by applying for land certificates from both authorities when pos­si­ble (Mark 2021). Land administration in dual administration areas occurred in several ways: 1. The KNU issued a title first, followed by the government issuing another title. 2. The government issued a title first, followed by the KNU issuing another title. 3. Villa­gers registered only with the KNU or the government, b ­ ecause the other side did not give permission for joint titling. 4. Villa­gers registered only with the KNU, ­because the government refused to register their customary claims. Posing a threat to the KNU’s authority, the government also increased its efforts to title land starting in 2012. For the central government, the ceasefire was

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also seen as an opportunity to strengthen its sovereignty. Sovereignty is conventionally understood as residing in “a po­liti­cal body that possesses ultimate, final and in­de­pen­dent authority; one whose decisions are binding upon all citizens, groups and institutions in society” (Heywood 2002, 92). However, critical scholarship points to the importance of distinguishing between de jure and de facto sovereignty (Agnew 2005, 437). A state’s sovereignty is fragmented when it is challenged by non-­state actors in ­either or both of t­ hese dimensions. In the Karen case, the KNU effectively competed with the state for de jure and de facto authority. Thus, the decades-­long conflict morphed from one that was fought only with arms to a competition for legal-­political superiority. While the military state had long been violent and extractive, competition with the KNU to establish sovereignty in ­these fragile ceasefire areas forced the state apparatus to appear, in some ways, ser­viceable to the needs of local populations in parts of the country that ­were officially declared to be “at peace.” Therefore, it came as no surprise that the land rec­ords officer for the Kayin State government similarly tried to convince me that the government’s land administration is far superior to that of the KNU.15 He pointed out that the government gave out many more certificates. Of 260,000 holdings covering 1,183,956 acres u ­ nder government administration, 139,312 land use certificates w ­ ere given 16 to 124,056 h ­ ouse­holds in Kayin State by January 2016. Fully aware of the competition, a KNU executive member complained that the government was trying to weaken the KNU’s legitimacy by making government land titling ser­vices more attractive to communities. According to him, while the cost to register one acre used to be as high as MMK 30,000 for one acre with informal fees, the cost had steadily dropped and was MMK 4,000 by early 2018, close to the official rate of MMK 500.17 The land rec­ords officer also derided the efforts of the KNU: The government does not go where it is not permitted. P ­ eople prefer the government system b ­ ecause it is much stronger. In addition, government title is only MMK 500, while the KNU is MMK 8,000. If KNU is titling ­house­holds, they must be taxing them. . . . ​The government is negotiating with the KNU. Once ­there is peace, the government ­will go into KNU areas and retitle. . . . ​Our system is good. It works for the majority of the ­people. D ­ on’t listen to ­t hose who are saying other­w ise.18 The KNU justice officer emphatically disagreed with this view. He said to me: We are trying to administrate our p ­ eople. We have been fighting for sixty years for our land and self-­determination. The government is trying to

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expand their administration and control. For example, Hlaingbwe Township used to be ­under our administration. Due to the government’s administrative and military power, we had to retreat to the border. The ­people support us, but they must live ­under government control. U ­ nder the peace pro­cess, KAD reached ­there and is also giving titles b ­ ecause the p ­ eople ­don’t feel fully secure ­under the Myanmar government policy. They feel the KNU policy provides more guarantees.19 Emphasizing how government laws w ­ ere imposed from the top and not protective of Karen p ­ eople’s land rights, the KNU’s general secretary, Padoh Kwe Htoo Win, made a video in 2013 to warn Karen communities about the laws. In it, he said: The 2012 Land Law gives rights to businesspeople to take land or lease land from the government. The Law encourages companies to come and carry out their proj­ects in our areas. The 2012 Land Law is not for our peace building. This is the prob­lem we have tried to address and to inform the government about.20 The KAD described a clear tension between the two systems and the authorities that administer them.21 The fundamental difference is that the KNU Land Policy recognizes that ­people own the land, not just the land use rights as recognized by the government. The KNU Land Policy allows h ­ ouse­holds to own up to thirty acres with no time limit, though they lose the right to the land if it is not used for more than three years. A second difference is that communal land owner­ship is more strongly protected in the KNU Land Policy. To this end, one of the KAD staff said, “­There is absolutely no VFV land—­every­t hing is customary land.”22 Third, although land leasing to outsiders is allowed, the KNU Land Policy tries to keep land within a community by forbidding its sale. Fourth, the policy sets strict limits to the amount of land that companies can own. Companies can receive a maximum of fifty acres for lease periods of five, ten, or twenty years. According to the KAD, t­hese limits have been hard to enforce in mixed-­control areas, where the government routinely leases much larger land concessions. Fi­nally, the policy seeks to allow for local variations in customary laws. For t­hese reasons, officers from the Settlement and Land Rec­ords Department (SLRD) told the KAD that its policy is too confusing, to which the KAD retorted, “The ­people know about their customary systems. It is too confusing for the government to understand.”23 One case handled by a Yangon-­based l­ awyer illustrates how the state’s attempts to dominate Karen areas caused hardships for communities. The ­lawyer described

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a case in Aseh Kaw Yin village in Hpa-­A n Township, where the KNU granted 8,413 acres to a community of 130 ­house­holds to form a new village.24 On June 22, 2015, the government burned down t­ hese ­houses and charged twenty-­ seven ­people with trespassing on forest land. The KNU sent an appeal letter to the Kayin State government to release t­ hese farmers, a­ fter which they took shelter in a monastery. In addition to friction with the government’s laws, Karen civil society leaders identified challenges internal to the KNU in implementing its own land policy.25 One of the most serious challenges is the lack of a regular bud­get. While the central level of the KNU is supposed to collect 14 ­percent of all taxes from districts, many sources of income are not reported to the central level, making it difficult to generate necessary public finances. A second challenge is related to the preference by some district leaders for large-­scale land investments. While the KNU Land Policy sets a fifty-­acre limit on land concessions, this policy is not supported, and in fact is circumvented, by some members of the KNU leadership who allocate larger land plots to investors. The presence of the BGFs pre­sents another challenge.26 ­Because they report to the military, not to the government, the BGFs are one of the most threatening ele­ments to communities. In return for their loyalty to the Myanmar military, they receive economic privileges, including shares in special economic zones and implicit permission to tax informal border crossings. Some BGFs partner with investors who enter t­ hese areas seeking quick returns, contributing to land confiscations that cannot be easily resolved by any conflict-­resolution mechanism.

“Ceasefire Capitalism” ­ fter the signing of the Nationwide Ceasefire Agreement, the government painted A a positive vision for Kayin State’s development post-­ceasefire. The Karen SLRD director said: “­There are a lot of natu­ral resources in this area, and this can be developed. ASEAN [Association of Southeast Asian Nations] can come in. The Asia Highway connects Thailand to India. Every­one can develop and move forward together.”27 It was telling that, at the final negotiation of the NCA text in August 2015, the government refused to accept a clause proposed by the EAOs that the government had to secure agreement from EAOs for all infrastructural investments during the interim period. Instead, the government agreed to “consult.”28 Showing a tone deafness in the context of the volatility of the areas u ­ nder tenuous ceasefires, the government announced a “Business for Peace” initiative in April 2017 between the Union of Myanmar Federation of Chambers of Commerce and Industry (UMFCCI) and the United Nations Global Compact Network Myanmar.29

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However, risks to local communities grew as new capital flows entered areas where laws ­were still being negotiated, where no one authority had complete control, and where many groups still held arms. Since 2012, conflict-­affected communities increasingly feared that the government was using the peace pro­cess to channel more investments into their volatile environment (Buchanan et al. 2013). On a day that jet fighters could be heard flying over Yangon, a member of the Karen Peace Support Group speculated to me that ­t hese ­were headed to Kayin State. She said: The government is renewing fighting in Kawkareik b ­ ecause they want to control the area for the Asian Highway. CSOs [civil society organ­izations] issued a statement against the ADB [Asian Development Bank]. We want energy and development, but this is rushed. . . . ​­People are worried that if KNU gets closer to government, this w ­ ill lead to land grabbing.30 From December  2012 to January  2015, the Karen ­Human Rights Group documented 126 cases of land confiscations (KHRG 2015). Cases ­were documented in both government-­controlled and mixed-­control areas. Infrastructural development, including development of roads, dams, bridges, and public buildings, contributed to sixty-­eight cases of land confiscations. Natu­ral resource extraction, including gold mining, stone mining, and logging, contributed to fifty-­ five cases. Commercial agriculture, usually for rubber, contributed to twenty-­one cases. Fi­nally, land was taken for military purposes in ten cases. Most proj­ects ­were initiated by the government with involvement from domestic and foreign companies, wealthy individuals, and armed organ­i zations, including the ­Tatmadaw, BGFs, DKBA, and the KPC. Consultations ­were rare and compensation almost non­ex­is­tent. In actuality, “consultations” never gave options to villa­gers to refuse, and thus ­were merely used to inform villa­gers that the confiscation of land would be inevitable and irreversible. In Meh Klaw village tract in Hpapun District, villa­gers w ­ ere invited to a meeting at which the township administrator told them that the local battalions had built a base on their lands and that “if we give back [the land] we ­will harm our country’s dignity” (KHRG 2015, 73). Local communities w ­ ere negatively affected by ­these confiscations, in ways including (1) livelihood insecurity, (2) loss of access to natu­ral resources, (3) pollution of ­water sources and flooding, (4) displacement, and (5) skin and respiratory diseases. Villa­gers reported to township-­ level authorities that they developed skin diseases from bathing in polluted ­water and respiratory prob­lems and headaches from inhaling dust from the mining. A review of one of the most high-­profile infrastructure proj­ects, the Asian Highway, provides insights into the complexities of land confiscations in Karen

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areas. The ADB proposed to construct a 70-­k ilometer stretch of road between Eindu and Kawkareik in Kayin State as the last segment of the Greater Mekong Subregion’s East-­West Economic Corridor, the only direct and continuous land route across Southeast Asia.31 The proj­ect was funded by the Thai Neighboring Countries Economic Development Cooperation Agency (NEDA) and the ADB with a total bud­get of USD 132.5 million. The loan to the government was approved in October 2015, prior to thorough consultations with the sixteen affected villages. By August 2016, communities still did not know about the full scope of the proj­ect, the total number of p ­ eople who would be affected, and compensation procedures. Research conducted by the Karen Thwee Community Development Network (“Thwee”) found that construction by NEDA did not follow international best practice or even domestic regulations around resettlement and compensation of affected communities (Thwee 2016). Thwee reported that affected ­house­holds (1) ­were not consulted on the proj­ect in advance; (2) ­were displaced without sufficient compensation for their lost lands, livelihoods, or damage to natu­ral resources; (3) ­were not assisted with resettlement; and (4) ­were unable to access any grievance mechanisms. The proj­ect purportedly increased tensions between the military, the BGFs, and the DKBA, leading to skirmishes that threatened villa­gers.32 Land conflicts along the Asia Highway w ­ ere symptomatic of an unresolved national prob­lem of p ­ eople having settled on land that the government l­ater claimed as state land. The issue of “squatters,” considered by the state to be anyone using VFV land without permission, raised questions about the state’s role with regard to guaranteeing minimum protections for p ­ eople. For reasons including population growth, the need to flee conflict areas, and lack of understanding about official land use categories, many communities settled in and cultivated lands not officially considered to be agricultural land. At the same time, in an environment such as Kayin State, where insurgencies resulted in thin government administration in much of the state, the relationship between communities and the Myanmar government had, u ­ ntil recently, been weak or non­ex­is­tent. In this context, the government was unclear about its obligations to the p ­ eople, as demonstrated by the official interpretation of how it managed the construction of the highway. When I met with the Kayin State minister of agriculture in 2015, he told me that the Asia Highway, or the road from Myawaddy to Eindu, had been planned more than one hundred years ­earlier.33 In 1995, the government started the pro­ cess of renovation, with a plan to expand the road to a width of one hundred feet across. A ­ fter armed conflict subsided in 2008, more h ­ ouse­holds started to move right next to the road. When construction on the road started, the government

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told them to leave the area, saying that the government had marked it for development. While the government asserted that the villa­gers’ lack of formal land rights meant that it was not legally obligated to provide compensation, ­human rights groups challenged that claim, especially considering a history of poor administration in peripheral and conflict-­a ffected areas (­Human Rights Watch 2016). Rights groups said that the government should have accepted that ­people are often not to blame for the complicated situation in which they find themselves. Rights groups further argued that the first step in resolving conflicts such as ­these starts with official recognition of communities’ customary use of land, which would give communities a more equal position from which to negotiate. Thwee echoed this view: Without clarifying land rights, ­free, prior, and informed consent cannot be effectively obtained. . . . ​Given that ­f ree, prior and informed consent cannot be truly obtained, proceeding with infrastructure proj­ects like the Asian Highway is a clear repudiation of international best practices, which is mandated by the National Land Use Policy. How can an affected person or a government official, or an appeal tribunal, effectively participate in a pro­ cess where the land rights have yet to be clearly delineated? (2016, 19) To a lesser extent, investments planned by KNU leaders at the district level and a few at the central level also raised concern among Karen civil society and communities. According to a Karen civil society leader, the KNU used to have more centralized control of district bud­gets, but the central level’s power weakened ­after the fall of its headquarters in Manerplaw. This led to development proj­ects being approved at the district level that w ­ ere not always aligned with central-­ level policy.34 Recognizing this prob­lem, the KNU started to draft a policy in 2013 with the aim of tightening investment regulations.35 Other Karen civil society leaders expressed sympathy with the KNU’s position and acknowledged that the KNU needed sustained sources of funding to govern. A representative of the Hpa-­An-­based group Research Institute for Society and Ecol­ogy said: The KNU also needs investments. Why are p ­ eople only expecting protection while not allowing KNU to do business? Many fear that if KNU does business, they w ­ ill have too much at stake to oppose the government. In 2010, when KNU CEC [Central Executive Committee] came h ­ ere for meetings they d ­ idn’t have any money for h ­ otel, food, or transport. Local KNU members are living in poor conditions. But the KNU, as a government

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needs money to provide ser­v ices. . . . ​This is not so bad if they d ­ on’t harm communities.36 The tensions between balancing the KNU’s need for revenues and the concerns that this could lead to environmental destruction and negative impacts on local communities spilled into the debate over the KNU’s proposal to build the Baw Ka Hta hydropower proj­ect in Nyaunglebin District in Bago Region. The proj­ect involved the KNU’s affiliated com­pany, Thoo Lei Com­pany L ­ td., and the government’s Ministry of Electricity and Energy. ­After a memorandum of understanding for a preliminary study of the proj­ect was signed on February 18, 2016, the KNU and Thoo Lei Com­pany held a series of consultation meetings with local communities. A statement put out by the KNU’s Economic Committee ­after the meeting said: It is impor­tant to note that no decision has been made to build a dam. At this time, the KNU is only interested in discussing with the Karen ­people and concerned organ­izations about how to proceed with this proj­ect. . . . ​ If we reach an agreement with the local community, the KNU ­w ill undertake environmental and social assessments with international experts, supported by the Government of Norway and in full consultation with local communities and concerned organ­izations.37 Despite consultations, critics continued to voice concern that building a dam in a conflict-­affected area could intensify conflict. Many called for the proj­ect to be canceled.

Po­liti­cal Opportunities Land conflicts w ­ ere of two kinds: within communities and between communities and external parties, such as companies. According to the KAD, the first was usually solved within communities or at the KNU’s township and district courts. The second type of conflict had to be treated as a po­liti­cal issue that could be resolved only between the government, the military, and the KNU.38 This proved to be extremely difficult in the past de­cade. As part of the NCA, the tripartite Joint Ceasefire Monitoring Committee (consisting of representatives from government, military, and EAOs) was created to monitor the implementation of the ceasefire. However, the committee’s role in resolving other conflicts, such as land confiscations, was much less clear. Given the lack of options for conflict resolution, Karen communities living ­under dual administration tended to appeal to the KNU to resolve conflicts. A

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2018 survey found that communities in KNU-­controlled areas turned almost exclusively to the KNU rather than the government (87 ­percent of respondents) (Saferworld 2018, 33). In dual administration areas, more villa­gers opted to resolve their conflicts through the KNU rather than the government (32 ­percent versus 21 ­percent, with the remainder not knowing). In government-­controlled areas, communities turned to the government more often, but at times also turned to the KNU when they did not get a satisfactory response from the government (51 ­percent versus 17 ­percent, with the remainder responding “none”). Thus, despite the criticism leveled at the KNU that it does not represent all Karen p ­ eople, many Karen p ­ eople still consider the KNU to be their protectors. At a workshop in Yangon, a former Karen parliamentarian referred to the KNU as “kyunma doh KNU” (our KNU). She said, “They are the last line of defense to protect Karen’s natu­ral resources.”39 Villa­gers, particularly t­ hose who have experienced conflict and displacement, rely on the KNU for protection and see the KNU as vital to the survival of the Karen as a p ­ eople. A displaced Karen villa­ger said: We want to ask our ­mother organ­ization to sympathize with us and support and understand our difficulties, engage in genuine peace talks, and not to only speak from their own perspectives. If we are to remain displaced like this, we w ­ ill not be able to practice and perform our traditional beliefs, cultural practices, and when our traditional and cultural practices dis­appear, our Karen p ­ eople w ­ ill also dis­appear.40 The 2012 bilateral ceasefire agreement and the 2015 NCA created a platform for bitterly divided actors to engage in setting new rules of governance. The inclusion of “interim arrangements” into the NCA reflected the quasi-­civilian government’s recognition of some EAOs’ administrative competence in areas ­under their control. “Interim arrangements” are defined by South et al. as “ser­vice delivery and governance in conflict-­affected areas, including the relationship between EAOs and government systems, during the period between initial ceasefires and a comprehensive po­liti­cal settlement” (2019, 6). Significantly, chapter 6, article 25 of the NCA states: The Ethnic Armed Organ­izations that are signatories to this agreement have been responsible in their relevant capacities, for development and security in their respective areas. During the period of signing ceasefire and po­liti­cal dialogue, we [the Government of Myanmar and the EAOs] ­shall carry out the following programs and proj­ects in coordination with each other in said areas.

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(1) Proj­ects concerning the health, education and socioeconomic development of civilians. (2) Environmental conservation. (3) Efforts to preserve and promote ethnic culture, language, and lit­er­a­ture. (4) ­Matters regarding peace and stability, and the maintenance of rule of law. . . . (5) Receiving aid from donor agencies both inside and outside the country for regional development and capacity-­building proj­ects. (6) Eradication of illicit drugs. In preparation for the second Union Peace Conference, the Karen carried out a series of preparatory dialogues in February 2017, involving up to seven hundred Karen from EAOs, po­liti­cal parties, and civil society organ­izations.41 With regard to land, delegates proposed ways to mitigate the complications caused by dual administration, including (1) speeding up the issuance of land certificates, (2) having the government recognize the land administration put into place by the KNU, and (3) building stronger coordination between both authorities to resolve land conflicts.42 ­After the signing of the NCA, the KNU turned to diplomacy to address pervasive land conflicts. In 2013, KNU General Secretary Padoh Kwe Htoo Win encouraged Karen p ­ eople to raise land cases to the KNU that it would work with the government to solve: “We agreed with the government in our (previous) talks that KNU issued land registrations the government w ­ ill recognize, and w ­ ill also recognize customary law of land owner­ship. KNU leaders in the areas ­w ill collect data of land confiscation and send to us so we can discuss with the government.”43 Throughout Kayin State, KNU liaison offices served as a channel for ­people in government-­controlled and mixed-­control areas to report rights abuses to the KNU’s central level, which then instructed the relevant departments to negotiate with parallel government departments.44 A case in the Nakamauk village tract in Bago Region demonstrates how the KNU’s involvement in a large-­scale land confiscation case resulted in the return of land to local communities. In 2009, the SLRD granted Khin Maung Aye, the head of the Myanmar Cooperative Bank, a thirty-­year lease for 2,400 acres of farmland to plant teak. By the end of 2015, Kaung Myanmar Aung Group had cultivated only two hundred acres. Farmers said that they did not receive any compensation and protested to get the land back. Recognizing that the government’s laws also apply in dual administration areas, the head of the KNU invited a

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Yangon-­based l­awyer to give l­egal advice to the community. The l­awyer told me, “The KNU is strong ­here, so the government is worried about taking action against the farmers.” 45 A confluence of ­factors forced the com­pany to return 1,888 acres of this land to the original farmers, while increasing compensation by MMK 500,000 per acre for the original ­owners of the 511 acres on which trees ­were planted by the com­ pany.46 The com­pany’s man­ag­er said: Among the 2,400 acres, only 511.38 acres w ­ ere cultivated, and the rest w ­ ill be returned to the farmers. . . . ​The current six court cases brought against eleven local p ­ eople w ­ ill be retracted, except for ­t hose against three ­people whose charges include hindering the interests of our com­pany.47

Civil Society Presence Repression of Land Activists In contrast to the Ayeyarwady Delta, where civil society was robust, Kayin State/ Kawthoolei’s civil society was less developed. Given the history of armed conflict, most of ­t hese groups had to operate on the Thailand-­Myanmar border, founded with assistance from Western donors since the 1990s. ­These groups tend to take a rights-­based approach to addressing vari­ous injustices. Karen ­Human Rights Group and KESAN have been among the most vocal groups addressing land-­related issues. Started in 1992, KHRG states that it is “committed to improving the ­human rights situation in Burma by projecting the voices of villa­gers and supporting their strategies to claim ­human rights.” 48 ­K ESAN states that it “works to improve livelihood security and to gain re­spect for indigenous ­people’s knowledge and rights in Kayin State . . . ​where the vio­ lence and inequities of more than 60 years of civil war have created one of the most impoverished regions in the world.” 49 Seeking to represent the Karen communities, ­t hese groups played impor­tant roles in advocating against land confiscations committed by any party through research on rights abuses and facilitating dialogues among dif­fer­ent parties. Quite significantly, since its founding in 2001, KESAN has been providing technical support to the KNU to develop better laws, policies, and administrative systems to govern land, forests, and other natu­ral resources. In addition to border-­based groups, a few Hpa-­An-­based CSOs also supported communities. However, the smaller groups tended to operate informally and w ­ ere much more embedded in the communities that they helped. Being more exposed, individuals associated with ­t hese groups were at risk for retribution from the

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government and other armed actors for their actions. ­Human Rights Watch said, “Land rights activists in Kayin State persist ­under especially repressive conditions as few groups feel they can safely speak out against government abuses without facing retaliation.”50 This environment severely restricted ­legal professionals and politicians from taking vocal stances in support of local communities. The 88 Generation Karen Student Organ­ization was one such group. The organ­ization documented rights abuses, mediated between communities and the KNU, and initiated dialogue with the government to resolve land confiscations. The organ­ization played a lead role in organ­izing a demonstration in Hpa-­An in late 2014, followed by a media briefing to persuade the government to return land identified for return by the Parliamentary Land Investigation Commission. With the assistance of a Karen parliamentarian and a ­lawyer from Sky ­Legal Aid Network, affected farmers managed to get part of their land back. As a result of the organ­ization’s activism, its leader, Maung Gyi, was arrested on August 7, 2015.51 Reflecting a tendency for the state to equate activists with terrorists, authorities charged him u ­ nder section 17(1) of the Unlawful Associations Act and as a threat to national security u ­ nder 505(b) for allegedly providing assistance to a Karen insurgent. Alongside Maung Gyi, the police arrested nine farmers and activists who w ­ ere sleeping at the organ­ization’s office and arbitrarily fined them for staying overnight outside their home district without government permission.52 ­Human Rights Watch denounced this move: The Burmese authorities’ repeated use of oppressive laws against land rights activists is a heavy-­handed attempt to silence them. . . . ​­These activists are forced to run from a gauntlet of government intimidation, arrests—­ and now, trumped-up charges—­just to try and help villa­gers stay on their land.53 Similarly, Maung Gyi’s ­lawyer commented that the ­legal system seemed particularly unfair in this case: “In Kayin State, the judges ­don’t treat the Karen very well. In the case of Saw Maung Gyi, the judge even closed the main gate to the court compound so nobody can enter the trial. It is not transparent, not ­free and fair.”54 Exemplifying a pernicious form of state vio­lence t­ owards activists, a few months before Maung Gyi’s arrest, on July 2, 2015, a land rights proponent and the village leader of the NLD party in Eindu village in Hpa-­An District was fatally shot by an unknown assailant.55 He had exposed corruption in the sale of land plots by the regional Ministry of Cooperatives. In Kayin State, ­t hose who openly challenged land confiscations faced mortal threats. Despite t­ hese challenges, communities demonstrated agency in attempting

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to resolve their land issues, particularly in maneuvering through the complexity of living ­under dual administration. Paul Sein Taw, the head of KESAN, expressed the need for strong community-­level mobilization to challenge land confiscations: “We seem powerless, but the leaders are afraid of our mobilization. ­There are so many ­t hings we can do to restore demo­cratic control to the land.”56 In this context, communities assisted by the KNU and CSOs, as well as ­lawyers and Karen politicians, collaborated to prevent, halt, and undo rampant land confiscation. Karen CSOs based outside of Kayin State and the Thai border, such as ­t hose in Yangon, w ­ ere less involved.

Village Agency In 90 of the 236 cases documented by KHRG’s 2015 report, villa­gers used a variety of strategies to protect themselves, but only a few cases ­were successful in preventing or mitigating harm. Negotiations with t­hose confiscating land w ­ ere mentioned in twenty-­four reports. Negotiations with the government w ­ ere carried out with written and oral reports by a group of villa­gers or the village head. This method was effective in stopping confiscation only in a small number of cases, but resulted in threats in most cases involving armed organ­izations. In one case, in Paingkyon Township in Hpa-­An District, a monk who did not give permission to KPC soldiers to log a community forest was arrested in October  2014 and killed. Communities also reached out to third parties for assistance. Seventeen cases involved villa­gers seeking assistance from community-­based organ­izations for protection from abuses and for compensation. Twelve cases involved village outreach to the KNU for assistance, usually in dual administration areas where the KNU has a degree of influence. In one case in Meh Ka Raw village in Hpa-­A n Township, the KNU openly opposed the construction of a cement factory by Soe Naing Phyo Com­pany at a meeting held on April 28, 2014, at which the chief minister, five Kayin State officials, and com­pany representatives ­were pre­sent. The proj­ect did not go ahead. Use of land registration pro­cesses was mentioned in eight reports. When villa­ gers used documentation of their land to prevent confiscation, including land use certificates from the government, t­ hese ­were not effective in getting land returned or securing compensation. In one case in T’Nay Hsah Township in ­Kawkareik District, villa­gers who had their land confiscated by the Tatmadaw applied for and received land titles from the Kawkareik government office. Upon showing the titles to the battalion commander, they ­were told, “Your documents are illegal so you cannot work on your farms. They [the farms] are military lands” (KHRG 2015, 80). Outreach to media, demonstrations, destruction of develop-

Kayin State or Kawthoolei  171

ment proj­ect materials, and direct confrontation w ­ ere used in a handful of cases, but ­these also did not result in the return of confiscated land or a halt to proj­ects.

Po­liti­cal Alliances Pro bono ­lawyers are impor­tant allies to communities. KHRG observed that ­lawyers w ­ ere in short supply not only b ­ ecause t­ hese cases d ­ on’t pay, but also ­because the threat level is high. One staff member said to me, “GAD [General Administration Department] and courts are so close. Many cases have to be solved by KNU’s negotiation. How can a l­awyer get involved with this?”57 ­Lawyers who dared to get involved with ­t hese cases assisted communities with their own meager resources. Sky L ­ egal Network was one of the few active networks working in Kayin State. It was formed in June 2015 by fifteen ­lawyers with the aim of (1) protecting ­human rights u ­ nder the constitution; (2) increasing ­legal knowledge; and (3) helping ­those suffering ­legal damages. Working alongside groups such as the 88 Generation Karen Student Organ­ization, the network took cases in government-­controlled and mixed-­control areas. One of the network’s found­ers explained to me that most cases ­were not settled in the courts, but through negotiation with the township, district, and regional Farmland Administrative Bodies. She said, “I have been able to get around one hundred acres returned, mostly from the military, which has not been using it.” In court cases, ­lawyers usually could not get land restituted but could minimize penalties to the farmers. In one case in Myawaddy, a BGF took the land of three hundred families who ­were charged ­under the Forest Act with offenses punishable by six months of prison. In court, the l­awyer negotiated for the farmers to pay fines in place of serving prison time.58 Kayin State politicians ­were yet another group of actors who supported communities. U ­ nder the Thein Sein government, Naw Nan Say Wah of the Ploung-­ Sgaw Demo­cratic Party, a member of the Parliamentary Land Investigation Commission, was very active in land confiscation cases. She gave assistance in a case that involved three thousand villa­gers who w ­ ere affected by the construction of the Hti Lon Dam in Hti Lon Township in Hpa-­An District (KHRG 2015). The dam was completed in 2010, but surrounding villa­gers faced negative impacts from subsequent flooding. Naw Nan Say Wah highlighted this case to the commission and raised it to the chief minister of Kayin State. In 2016, ­after she served her term, she expressed frustration with the lack of pro­gress made to date: “The commission said the land should be returned, but the administration did not do it. In many cases, the administrators did not solve the prob­lems, but reported up that the prob­lems ­were solved.”59 In addition, she attributed the lack of pro­gress to fear and lack of awareness about rights among ethnic ­people. She said, “Ethnic

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­ eople still have a lot of fear. They d p ­ on’t know how to exercise their rights like the ­people in Letpadaung. . . . ​They d ­ on’t know what the constitution provides for them.” Kayin State’s minister of agriculture also demonstrated a willingness to help communities. He said, “Though no parties have a strong stance on land issues, ­because the central government would put a lot of pressure on them, I make a personal commitment to try to take up the land issues of my p ­ eople.” 60 In Hlaingbwe, KESAN cooperated with this minister to negotiate with the military to return 134 acres to communities.61 For de­cades, Karen communities in conflict-­affected areas have strug­gled in an environment marked by armed conflict, lawlessness, and a dynamic system of governance. New types of insecurities emerged for them following the 2012 bilateral ceasefire. One type of insecurity stemmed from the complexities created by the growing presence of the government’s administration in formerly KNU-­held territories. A second insecurity stemmed from the opening of border areas to increased investments a­ fter the ceasefires, a repeat of what happened in Myanmar’s border regions a­ fter the initial round of bilateral ceasefires in the late 1980s and 1990s. Exhibiting resilience and prioritizing land security, communities navigated the complexity of living ­under dual administration and built po­liti­cal alliances to resist and undo land grabbing. At times, the KNU was able to leverage the dynamics of the national peace pro­cess to mitigate and reverse harm to communities caused by land grabs. ­After the military, the government, and the EAOs agreed in princi­ple to embark on a path ­towards the creation of a federal ­union, a platform was created to negotiate power sharing. This po­liti­cal opening catalyzed a pro­cess in which Karen from diverse backgrounds worked to find common ground in their shared vision for a federal democracy. Since the coup in 2021, the Karen and the KNU had to set aside their work in addressing ethnic minorities’ grievances over land and territory, as they focused their energies once again on resisting the military’s consolidation of power through violent counteroffensives.

Conclusion

While t­ here ­were numerous forces at play and actors involved, Myanmar’s top-­ down transition was catalyzed by reformist members of the military regime who ­were faced with domestic and international pressures to reshape the country’s image from that of an autarkic authoritarian regime into a modern nation that would be developmentally on par with its Asian neighbors and respected the world over. To undertake this ambitious proj­ect, the Thein Sein government si­mul­ta­ neously initiated reforms to strengthen demo­cratic institutions, to fully open its market economy, and to move the country ­towards a sustained peace—­a ll while attempting to retain full control of the scope and pace of this three-­part transition.

A Fraught Transition In adopting a more open market economy, the government extended new laws to clarify and formalize private property rights. The quasi-­civilian government soon discovered that the introduction of such laws on top of a complex, stacked ­legal framework and a history of unresolved land confiscations led to an eruption of land conflicts. In a hybrid regime, many arcane institutions remained intransigent to reform, resulting in affected communities being unable to employ the law in their quest for justice. Instead, the law continued to operate as “a law of status,” in that elites ­were able to manipulate the laws’ ambiguity and internal contradictions to their advantage. The transition period saw an increase in farmers being charged with violating t­ hese new land laws and imprisoned. Reformist pacts, however, created openings for civil society to influence policymaking while exhibiting a resurgence across the country. For example, the formation of temporary state-­society alliances could be observed in the pro­cess of drafting the National Land Use Policy. On the other hand, ­t here ­were many who opted for confrontation over engagement, and the country saw a rise in public, and at times violent, demonstrations to change the status quo, as in the high-­profile case of the Letpadaung copper mine. Civil society unity was weakened by groups’ 173

174  Conclusion

use of divergent tactics in land strug­g les, as well as by cleavages along identity markers such as ethnicity and gender. As demonstrated by the three regional case studies, civil society did not enjoy a uniform resurgence across the country. S­ haped by historical, po­liti­cal, and geographic ­factors, civil society interacted with dif­fer­ent types of po­liti­cal opportunities that appeared in each area during the transition period. The Delta was characterized by active civil society, and despite an un­co­or­di­nated mix of strategies ranging from engagement to confrontation, the existence of contentious politics likely incentivized official support for reforms that authorities other­w ise might have considered too radical. In Chin State, a history of distant state-­society relations, a weakly unified polity, and ­limited—­a lbeit increasing—­t hreats to the land created an environment not conducive for civil society. As a result, attempts to secure state recognition of customary land was led by some of the Chin po­liti­ cal elite, partly through the formal spaces created by the peace pro­cess and the broader legislative reform pro­cess. Post-­ceasefire Kayin State, meanwhile, demonstrated another typology of state-­citizen relationships, characterized by the way communities ­were forced to appeal for their rights to two competing authorities: the government and the Karen National Union (KNU). Depending on the degree of control by ­either authority, this resulted in very dif­fer­ent tactics used by civil society—to rely on the KNU to mitigate the government’s aggressions, to maneuver between the two to maximize security in vari­ous dimensions of life, or to appeal for protection solely from the government. As part of the state’s attempt to cohere sovereignty and to strengthen legitimacy among its diverse citizenry, the state agreed in princi­ple to move the country ­towards a federal ­union, in turn securing the participation of a bloc of ethnic actors in the national peace pro­cess. This created an official space in which ethnic minority groups could make demands for institutions that would guarantee their rights, including rights to territory. However, this pro­cess soon proved to be much more difficult than many had anticipated. Ethnic alliance building was hampered by several ­factors. ­There ­were differences in strategies among armed ethnic actors and between armed and unarmed ethnic actors. Despite sporadic clashes, ten ethnic armed organ­izations in princi­ple laid down their arms to engage in po­liti­cal dialogue, while a larger share of ethnic armed actors continued in warfare. Given that the Nationwide Ceasefire Agreement (NCA) was largely a military-­designed road map to negotiating peace on the military’s terms, ­little pro­ gress was made through the official national dialogue since the NCA’s signing in 2015. This further fueled the distrust by non-­signatories t­owards the peace pro­cess.

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­There was also a notable division between armed and unarmed ethnic actors. While the armed ethnic actors focused their efforts on the longer-­term goal of realizing a federal ­union, choosing not to legitimize the government by engaging with its legislative reforms, many among the unarmed ethnic actors engaged with the government’s legislative reforms with the aim of securing statutory recognition of ethnic land claims. The result was the creation of two parallel pro­cesses that at best did not align with each other and at worst contradicted each other. While the formal peace pro­cess did not achieve any substantial compromises by way of sharing control over land and natu­ral resources, the pro­cess did serve at least two purposes: (1) it fueled debates about the control of land and natu­ral resources at both the national and sub-­national levels; and (2) it facilitated co­a li­tion building both within and among ethnic groups. Unsurprisingly, the government’s prioritization of economic growth often came into conflict with its pledge to support progressive land reform and sustainable peace. In some cases, local communities and civil society saw wins in their efforts to undo a legacy of land confiscation, such as the government’s conceding to demands calling for stronger regulation and, in some cases, cancellation or modification of the terms of extractive investment proj­ects. Some domestic economic elites, ­eager to engage with a larger pool of international investors concerned with corporate accountability, ­were incentivized to at least to appear to adopt higher social and environmental standards. Facing strong public backlash and friction with the quasi-­civilian government, foreign investors, including Chinese state-­owned enterprises, engaged in broader stakeholder engagement to secure greater community ac­cep­tance. While some improvements in the regulatory environment could be observed (such as the return of confiscated land to dispossessed farmers), t­ hese improvements w ­ ere inconsistently applied by national and local government authorities, many of whom w ­ ere not even aware of them. As a result, many communities continued to suffer at the hands of investors, especially in areas directly affected by armed conflict and where authority remained ambiguous. In ­t hese areas, ceasefires brought in poorly regulated investments from both domestic and foreign sources, which w ­ ere often unwanted by local communities.

Conceptual Takeaways Reflecting a co-­constituent relationship between democ­ratization and land politics, this book set out to contribute to an understanding of the role of land in political-­economic transitions, with a focus on tensions and contradictions related

176  Conclusion

to the democ­ratization of land institutions. Four key analytical points can be extracted from the story of how Myanmar’s land politics played out during the transition period. First, instead of applying a national lens to understanding land politics, it is more informative to look at how variability in the state-­citizen relationship at the sub-­national level mediates p­ eople’s ability to claim their rights as full citizens and to influence the outcomes of land politics. This study demonstrates the utility of analyzing an amalgamation of structural and agential f­actors across three very dif­fer­ent sub-­national contexts in Myanmar to show a range of p ­ eople’s lived realities during the transition period. A key structural f­actor is the way the state regards dif­fer­ent subpopulations u ­ nder the purview of its territorial control, specifically the extent to which the state decides that it has (or does not have) an obligation to guarantee the rights of its subjects. This book shows that the state-­ citizen relationship is further mediated by history; a locale’s geography; sociocultural ­factors, such as ethnicity; and evolving po­liti­cal opportunities, including new norms that may shape the relationship. Given the variability in this relationship, the state’s treatment of dif­fer­ent members of society may vary, while some ­people may not view or pre­sent themselves as full citizens before the state. As a result, it may be much more difficult for a community to collectively or­ga­ nize and to demand the state’s protection of the community’s rights. A locale endowed with abundant natu­ral resources combined with a weakly developed state-­citizen relationship may be vulnerable to mass dispossession. Since in­de­pen­dence, Myanmar’s constitutions have recognized eight major ethnic groups as full citizens on paper, yet this recognition has not been borne out in practice. Article 21(a) of the 2008 Constitution says, “­Every citizen s­ hall enjoy the right of equality, the right of liberty and the right of justice, as prescribed in this Constitution.” However, the policies exercised by successive regimes have been explicit in making it clear that most non-­Burmans would be prevented from exercising their full set of rights and from having an equal say in the construction of the modern nation-­state. This led to de­cades of armed conflict between competing groups of po­liti­cal elites, the fallout of which has been borne by local populations who faced the existential crisis of survival with the routine onslaught of artillery, land mines, and physical and m ­ ental assaults. This history not only resulted in a fragmentation of state sovereignty, but also prevented the development of a shared sense of nationhood among the p ­ eople, many of whom avoided the state and sought protection from non-­state armed groups. ­Those who lived outside of armed conflict did experience aggressions from the military regime, but in comparison, w ­ ere able to develop a wider repertoire of interactions with the state that, over time, concretized a state-­citizen relation-

Conclusion  177

ship, such as in the Delta. As demonstrated by the regional case studies, dif­fer­ent types of state-­citizen relationships resulted in local populations experiencing dif­fer­ent realities in their strug­gle for land. In the Ayeyarwady Region, where communities had a history of devising adaptive strategies to respond to the state’s policies, a dense and complex mix of actors engaged with land politics during the transition de­cade. Regional authorities ­were motivated by several f­ actors to address the land conflicts, including wanting to appear aligned with high-­level government policies, to retain the support of their constituents, to promote economic development, and to leave a positive legacy. In addition, the scale and complexity of the prob­lem pushed reformist state actors to create temporary alliances with farmer leaders and other groups to resolve it. This resulted in modest wins by communities. Land politics in Chin State, reflecting a legacy of the Chin as a weakly unified po­liti­cal community and a society historically administered at arm’s length by the state, looked very dif­fer­ent from land politics in the Delta. Given rural communities’ low levels of awareness of the emergent threats posed to their land and l­ ittle interest among regional authorities in challenging national land laws, some Chin po­liti­cal elites together with influential civil society actors took a more active role in land politics. They worked within new channels created by the peace pro­cess to advocate for the strengthening of protections for Chin customary land tenure systems. Kayin State demonstrated yet another way that land politics played out. The seven de­cades of civil war between the government and the KNU resulted in the present-­day situation of dual administration of land by both authorities. Dual administration created many difficulties for local communities, but with support from Karen civil society, they tenaciously navigated this to maximize security for their land and other spheres of their lives. ­Because the KNU was among the strongest signatory group to the NCA, it was able to leverage the national peace pro­ cess to, at times, mitigate and reverse harm to communities caused by land confiscation. Second, achieving progressive land outcomes in transitions from authoritarianism necessitates pacts between reformist state actors and opposition elites, as well as grassroots pressure from an active civil society. Democracy theorists point out that transitions away from authoritarianism involve shedding the old mantle of personalized and arbitrary rule and adopting a new one that is inclusive and impartial. To do so, the old regime may create ­limited spaces for po­liti­cal engagement, to which elite members of the opposition with credibility afforded by birthright, know-­how, and other status markers are invited. ­Under t­ hese pacts, temporary as they may be, new rules of governance are debated and at times

178  Conclusion

a­ dopted. This shift may signal improved prospects for reform to the grassroots level and fuel the resurgence of civil society. In transitions from authoritarian rule, a strong civil society is needed to take advantage of the openings created by reformist state actors to pressure the government to adopt progressive reforms and to hold it to account for implementing them. Grassroots movements must be able to identify, assess, and deploy a range of tactics as po­liti­cal opportunities shift. In addition, grassroots movements must be able to build alliances across a range of discordant actors, often with dif­fer­ent visions and strategies for change. The convergence of reformist pacts and grassroots movements was evident in the land restitution pro­cess. In the transition period, the question arose of how best to manage the low-­productivity land concessions handed out ­under the military regime. Some reformist members of the old regime interpreted the situation as a lost opportunity to translate the country’s resources into revenues, especially with new investors returning and e­ ager to access Myanmar’s abundant natu­ral resources. ­Others saw this as an opportunity to gain populist support for the new quasi-­civilian government, especially since most of the population still resided in rural areas. For the millions of ­people who sought redress for the suffering they endured a­ fter having their primary source of livelihoods taken away, it was an unpre­ce­dented opportunity to right a wrong. ­After the Parliament Land Investigation Commission recommended the return of half a million acres of land, many regional governments w ­ ere also pressured to mollify demands from rural communities. In the Ayeyarwady Region, top-­down messaging and bottom-up pressure to resolve the mounting land cases led to the creation of a temporary regional-­ level pact between government authorities, farmer leaders, and civil society actors. A portion of the land was returned to local communities, but the government bureaucracy, mired in de­cades of unscrupulous practices, presented obstacles at e­ very level. Since taking power in 2016, the National League for Democracy (NLD) government made efforts to continue this work, but they only made modest pro­gress primarily in the lowlands. Ethnic minorities believed that the Thein Sein and Suu Kyi governments failed to comprehend and afford protection to their customary lands. Third, movements that mobilize around identity markers to achieve more demo­ cratic land outcomes often face challenges to broader alliance building. On the other hand, movements that appeal beyond the identity politics of their bases may mitigate against marginalization. Scholarship on social movements emphasizes the importance of alliance building and attributes movement fractures to differences in ideological and po­liti­cal stances, at times rooted in identity markers such as class, gender, and ethnicity. Scholarship also highlights the importance of how

Conclusion  179

frames of meaning are mobilized and expressed. The way a par­tic­u ­lar group can strengthen and articulate its collective identity, in turn, shapes t­ hese actors’ “understandings of their condition and of pos­si­ble alternatives” (Edelman 2001, 291). In Myanmar, armed and non-­armed ethnic actors faced numerous challenges to their alliance-­building efforts. ­These challenges had to do with differences over vision, po­liti­cal strategies, and articulation of demands. First, many ethnic groups disagreed among themselves over questions of how land should be administrated. Groups such as the KNU, which controls territory, aspired ­towards po­liti­cal settlements that could guarantee their exclusive control of the Karen nation within Kawthoolei. In contrast, groups that do not administer territory, such as the Chin National Front (CNF), demanded greater power sharing between central and regional governments over the control of land and natu­ral resources. Second, some armed groups w ­ ere divided within themselves, with factions stemming from differences in po­liti­cal vision and competition for influence within the group, which at times led to seemingly contradictory approaches t­owards the central state. Third, with regard to po­liti­cal engagement, the approaches taken by ethnic actors ranged from open armed strug­gle, to negotiation for the establishment of a federal u ­ nion, to engagement with gradual legislative reform. Fourth, ethnic actors ­were challenged to find common discursive framing for their strug­gles, including disagreement over the terms “ethnic nationality” and “indigenous p ­ eople.”1 Beyond internal divisions, another obstacle to advancing the ethnic movement for more equal power sharing had to do with how this strug­gle was portrayed. Since the revitalization of the federalist movement by ethnic minority leaders postin­de­pen­dence, the military regime discounted the movement as an ethnic proj­ect of separatism that threatened the integrity of the Union. Similarly, the average person viewed federalism as the proj­ect of ethnic minorities, not something that could improve governance for all citizens. Despite the many obstacles, both the Karen and the Chin, as well as other ethnic groups not discussed in depth in this book, made notable efforts to work ­towards bridging historical cleavages within themselves and among the dif­fer­ent ethnic groups. ­After signing bilateral ceasefires with the Myanmar government and motivated by the possibility of building a federal democracy, both groups held a series of impor­tant dialogues to build a stronger shared po­liti­cal identity among their own members. In addition, the Karen took a leading role, through the championing of the KNU Land Policy, in articulating a vision and a way forward for strengthening ethnic minorities’ claims to ancestral territory. The Karen and the Chin, alongside other ethnic minority groups and with the support of progressive entities in Burmese society, attempted to promote a unifying discourse around the concept of federalism during the transition period. Despite ­t hese efforts, the

180  Conclusion

legacy of division and mistrust, particularly between ethnic minorities and the Burman-­dominant leadership, prevented the country from making substantial pro­gress in nation building. Fourth, as countries undergoing economic-­political transitions integrate more deeply with global production chains and markets, they open themselves to transnational forces that may be power­ful enough to restructure ­these countries’ domestic cap­i­tal­ist systems. However, this pro­cess does not always lead to negative developmental outcomes. Local populations living in countries in the early phases of integration into the neoliberal market order may be vulnerable to the onslaught of extractive forms of capitalism. Overall, ­t hese countries contribute relatively modest economic value but often hold im­mense natu­ral resources. Once extracted, the natu­ral resources are integrated into commodity chains, and even financial markets, in which land speculation forms part of some investment portfolios (Kenney-­Lazar and Mark 2020). When t­ hese countries open their borders to the influx of capital, particularly in sectors that involve natu­ral resources extraction, prior to the creation of strong regulatory institutions, they may become sites of the worst forms of social and economic exploitation. This is especially problematic when transition states are too slow or resistant to do away with institutions characterized by patron-­client relationships between the state and moneyed elites. However, transnational cap­i­tal­ist forces do not always have a downward pressure on countries at the periphery of the global economy. As demonstrated by Myanmar, an isolated country that started off with a very low economic governance bar, reformist state actors in the early stages of economic liberalization may promote more sustainable forms of economic growth in a country’s long-­term interest. In ­doing so, they may attempt to reform draconian institutions marked by personalized and unaccountable decision-­making. In Myanmar, ­t here was a notable change in the discourse among reformist state actors who talked about the need to create a more “even playing field” through the elimination of monopolies by certain domestic and foreign investors, as well as the enforcement of higher social and environmental stands. Many w ­ ere aware that to attract more desirable types of investments—­including t­ hose that offer a fairer share to the country, create more jobs for local communities, and do not lay waste to the land—­they had to make a concerted effort to remake the economic rules of the game. Grassroots mobilization also compelled the quasi-­civilian government to act in high-­profile cases. This meant that, for the first time in history, the military was forced to answer questions from the Parliament about the military’s legacy of rampant land confiscations, while the Union of Myanmar Economic Holdings L ­ imited

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(UMEHL) was put in the awkward position of managing compensation for communities as part of the bargain struck concerning the Letpadaung copper mine. The new operating environment also led to vari­ous delays and cancellations in other high-­profile investments, which forced the Chinese government to seek social license to operate from a wider range of stakeholders. At the same time, the potential to engage with larger pools of capital incentivized some domestic companies to clean up their images. This pro­cess was disparate and laborious, and many of t­ hese changes w ­ ere cosmetic. However, it can be said that Myanmar’s transition t­ owards open markets exposed the country to new norms and corporate governance standards. Myanmar offers a compelling and singular story of the unfolding of land politics within a turbulent and multi-­part transition ­towards democracy, open markets, and peace building. This story shows just how difficult it was to build a more demo­cratic and inclusive society based on a coherent national identity, given the country’s long history of undermining the territorial and other rights of its many ethnic groups. Theoretical implications gleaned from Myanmar’s experience can help to shed light on the experience of other countries undergoing similar transitions. Myanmar’s experience may be particularly relevant to agrarian socie­ties in which the state seeks to balance between the often-­conflicting goals of consolidating democracy and facilitating economic growth. The four takeaways extracted from an analy­sis of Myanmar are impor­tant to consider in understanding land politics elsewhere—­regardless of how they play out. While the same outcomes might not be seen in other countries, attempts to understand such realities could benefit from a consideration of t­ hese concepts.

Uncertain Trajectories ­ owards the end of my research on Myanmar, the country experienced extreme T turbulence. The Rohingya crisis that erupted in late 2017, described in the introduction to this book, shattered the veneer that the country was willing to part with its brutal past in pursuit of a more progressive form of governance. The crisis tipped the careful balance of power between key domestic actors, as well as between Myanmar and the international community, and laid bare internal contradictions that remained unresolved. ­These contradictions included but were not l­imited to (1) NLD party members caught in a centralized party system and hampered by an archaic bureaucracy in which the military retained much influence (for example, the central role played by township administrators), which prevented the NLD government from advancing and enforcing sensible policies; (2) the highly complex peace pro­cess,

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which the NLD government pledged to advance but which faced numerous setbacks as the military retained control over the nature and pace of negotiations, resulting in a huge loss of confidence among opposing parties; (3) the Suu Kyi government defaulting back to its reliance on China, ­after an initial effort by the Thein Sein government to reduce it, as China proved to be a stalwart ally in the face of international condemnation of the Myanmar government’s h ­ andling of the Rohingya crisis; and (4) perhaps most significant, the deep po­liti­cal chasm and power strug­gle between the military and Suu Kyi, who, in a play to gain po­ liti­cal leverage with the military, defended its crimes against the Rohingya, to the world’s horror. Analysts also suggested that, given Suu Kyi’s high standing among the ­people, she could have chosen to take a stronger stance to speak out against the h ­ uman rights abuses committed against the Rohingya ­under her watch but chose not to do so. Sources close to her confirmed that she did not want to expend po­liti­cal capital to protect the rights of a group of p ­ eople whom she never considered to be Myanmar citizens in the first place.2 Despite Suu Kyi’s tenuous bargain with the military through her ­handling of the Rohingya crisis—­a bargain that implied that the military would leave her government to continue overseeing all sectors of society outside of what the military deemed to be m ­ atters of security—­t his truce did not hold. On the morning of February 1, 2021, the day that a new slate of representatives elected in November 2020 was to convene, the military, headed by Min Aung Hlaing, staged a coup and detained Suu Kyi, the then president Win Myint, and other members of the opposition. Min Aung Hlaing likely misjudged the public’s sentiment t­ owards the NLD in thinking that the party’s mediocre per­for­mance over the past five years should have prevented it from winning another landslide victory, but he instead claimed that the November  2020 election w ­ as fraudulent. Citing sections 40(c) and 417 in the 2008 Constitution as giving the military power to take over in a state of emergency, Min Aung Hlaing immediately announced that the military would remain in power for a year, though later extended, u ­ ntil new elections ­were held. Constitutional law experts3 and election monitoring groups4 have debunked the justification. Within a week, the Myanmar ­people r­ ose and overwhelmingly rejected the coup. Protests ­were quickly mobilized by activists, primarily youth. Several hundred thousand ­people across the country joined the civil disobedience movement (CDM), a grassroots nonviolent protest movement that encouraged civil servants and private sector workers in key industries, such as banking, to boycott work ­under the military. Soon afterward, urban youth, disillusioned with the nonviolent movement’s in­effec­tive­ness in stemming the junta’s increasing use of vio­lence on unarmed civilians, joined civilian militia groups called ­People’s Defense Forces

Conclusion  183

(PDFs), fighting alongside ethnic armed organ­izations, several of which resumed active combat despite having signed the 2015 NCA. To silence criticism and to prevent ­people from mobilizing against the junta, the military increased surveillance of telecommunications, while heavi­ly restricting access to it; suspended in­de­pen­dent tele­v i­sion and radio broadcasts; declared many newspapers illegal; and cracked down on gatherings or any other telltale signs of re­sis­tance, even singeing tattoos of Suu Kyi’s image off ­people’s skin. Since late February 2021, the military escalated its use of lethal vio­lence on largely unarmed protesters, killing over two thousand in this way by the m ­ iddle of 2022.5 Adding countless more to the list of the dead, air strikes have been carried out in regions of the country suspected to harbor civilian militias, particularly Chin State, Kayin State, and Sagaing Region. According to the monitoring group Assistance Association for Po­liti­cal Prisoners, nearly thirteen thousand p ­ eople ­were detained at the close of 2022, many of them held in abject conditions and subjected to starvation, torture, and eventual death.6 While multiple reasons have been proposed by analysts, the most likely reason for the coup relates to the threat posed to Min Aung Hlaing and the military by a per­sis­tently popu­lar government ­under the leadership of Suu Kyi. In the years leading up to the coup, Suu Kyi had more aggressively pushed for the 2008 Constitution to be amended with the aim of reducing the military’s economic and po­liti­cal power. In addition to the military’s anxiety about its diminishing power, another reason for the coup likely included Min Aung Hlaing’s personal ambitions to occupy the highest ranks of power, even while facing charges of genocide for his role in leading murderous campaigns against the Rohingya.7 His decision to carry out the coup was abetted by the military’s ability to act with impunity ­under the 2008 Constitution and its lack of international accountability, as the authoritarian regimes of China and Rus­sia have blocked any substantial action against the regime by the United Nations Security Council.8 In response to the coup, President Biden issued an executive order on February 11, 2021, that stated that the coup “constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States” and declared a “national emergency” to deal with the threat.9 Days l­ater, the Federal Reserve Bank blocked the junta’s access to one billion dollars held in its accounts,10 while the US Department of the Trea­sury sanctioned a growing list of entities and individuals propping up the regime. Allied countries such as the United Kingdom and the Eu­ro­pean Union followed suit. Other major powers, including China and the Association of Southeast Asian Nations (ASEAN), did not impose any punitive mea­sures on the junta but called for a negotiated settlement brokered by ASEAN, whose efforts the junta has repeatedly blocked. However, despite having

184  Conclusion

been recognized by a several national legislatures and having representative offices in a handful of supporting countries, no country has recognized the National Unity Government (NUG)—­t he interim government formed by the members of the Committee Representing the Pyidaungsu Hluttaw (CRPH), which in turn was created by the parliamentarians deposed by the military—as the sole legitimate government of Myanmar. By mid-2021, analysts described Myanmar as being on the brink of becoming a failed state.11 The economy was already contracted from the impacts of C ­ OVID-19 the year before, but the coup led to a near meltdown. Furthermore, the ineptitude of the junta in economic management contributed to a 60 ­percent depreciation of the Myanmar kyat12 and a sell-­off of the local currency, which further exacerbated the monetary crisis. The military responded to the resulting high inflation, cash shortages, and rising prices of basic goods by resorting to obsolete methods, such as nationalization of businesses. ­These desperate moves sent international investors rushing out the door. The World Bank estimated that the FY2021 gross domestic product (GDP) contracted by 18 ­percent,13 while 40 ­percent of the population fell ­under the national poverty line by mid-2022, equivalent to poverty levels a de­cade ago.14 The rampant spread of COVID-19 on the back of a collapsed health-­ care system exponentially worsened the crisis, debilitating ­house­holds and communities across the country. At the same time, vio­lence grew more widespread as the military increased its ground and aerial attacks across the country. Despite the quagmire, t­ here are no signs that the military junta w ­ ill back down. Longtime Myanmar observer Bertil Lintner predicts that the military w ­ ill go down fighting rather than compromise.15 He has three reasons for this prediction: (1) giving in surely means facing retribution for the military’s long list of crimes; (2) the military’s economic interests are too entrenched in the status quo; and (3) the military sees itself as the guardian of a certain anachronistic sociopo­liti­cal order that it believes the country is bound to uphold. At the close of 2022, as I pen the final passages of this book, I am tempted to contemplate an optimistic ­f uture scenario for Myanmar, but ­t here is no telling in what direction the country ­w ill head. However, it is evident that the past de­cade of Myanmar’s experimentation with democracy left an indelible impact on the Myanmar ­people, reshaping their expectations for the type of country and ­f uture they deserve to have. This is even more true for the youth who came of age during the transition period. Thus, it is no surprise that the demo­cratic movement, both in its civil disobedience and armed strug­gle forms, has largely been led by youth. As re­sis­tance forces expand fighting beyond the hills to Myanmar’s lowland urban centers, junta forces have suffered heavy losses. Min Aung Hlaing

Conclusion  185

even admitted in an interview broadcast on Chinese tele­v i­sion that the strength and scale of this re­sis­tance movement caught him off guard.16 The breadth and depth of the armed strug­gle across all parts of the country distinguishes the post-­coup period from the start of the previous transition period, when domestic re­sis­tance to the military regime was tamer. Myanmar’s recent attempt to transition from authoritarian rule faced minimal re­sis­tance ­because it was initiated by reformers in the old regime and utilized pacts, with grassroots movements playing a complementary role across the national landscape. However, in the post-­coup period, civil and armed grassroots resistance—­ and not elite pacts—­may be the dominant determinant for who holds power in the f­uture. In other words, ­until the NUG can claim both de facto and de jure sovereignty over swaths of the country through b ­ attles won by the grassroots re­ sis­tance, it w ­ ill not be in a position of strength to deal with the junta. Alongside the armed strug­gle is a national pro­cess of dialogue involving dif­ fer­ent stakeholders in the demo­cratic movement, driven by the shared vision of Myanmar becoming a federal democracy. The National Unity Consultative Council (NUCC) is a comprehensive assemblage of national actors involved with crafting this vision. The NUCC was established ­u nder the Federal Democracy Charter,17 written as the precursor to a new constitution to replace the 2008 Constitution, which the CRPH declared abolished in March 2021. The NUCC has not been able to mobilize all ethnic minority groups, such as the power­ful United Wa State Party (UWSP) and the United League of Arakan (ULA), and a deficit of trust persists between ethnic minority stakeholders and the Burman-­dominant NLD party, which is accused of dominating the negotiating space. Nevertheless, it is promising that the Federal Democracy Charter identifies collective leadership as a princi­ple for a ­future federal demo­cratic u ­ nion.18 This development is also a departure from a history in which the “federalism proj­ect” has generally been considered an aspiration of ethnic minority groups. If demo­cratic forces can make this vision a real­ity, they w ­ ill have made more pro­gress ­towards forging the Myanmar nation than has been made since the founding of the country in 1948. While the coup is considered by most Myanmar ­people to be the darkest chapter in Myanmar’s history since its in­de­pen­dence in 1948, the coup has also pushed p ­ eople to tap into their deep reserves of strength, courage, self-­reliance, and ingenuity as they rally around the ­battle cry, “May the revolution prevail!”

Notes

Introduction 1.  The military government in 1989 changed the country’s official colonial name, Burma, to Myanmar. Since the promulgation of the 2008 Constitution, the official name of the country became the Republic of the Union of Myanmar. The name is used by much of the international community, including the United Nations. Throughout the book, u ­ nless referring to specific historical periods—­such as post ­independence, when the country was called the Union of Burma—­I use the term “Myanmar” to refer to the country. “Burmese” refers to the Myanmar ­people, while “Burman” refers to the majority ethnic group. Similarly, in 1989, the names of many states and region were officially changed, such as “Karenni” to “Kayah” (although in use since 1951), “Karen” to “Kayin,” and “Arakan” to “Rakhine,” with the former strongly preferred by the ethnic groups. This explains the difference between many of the names of the ethnic groups and the current official names of the states and regions. 2. ­A fter the military coup on March 2, 1962, the government was headed by the Union Revolutionary Council of Burma, chaired by General Ne Win. He was also the chairman of the Burma Socialist Programme Party (BSPP), which was formed in July of that year to become the sole ruling party at the time. A ­ fter the adoption of the 1974 Constitution, supreme power was vested in the Council of State, headed by Ne Win, who took on the title of president. A ­People’s Assembly was created as a legislative body. Following the student-­led democracy uprising of 1988, the military abolished the constitutional government and the State Law and Order Restoration Council headed by General Saw Maung took full power. In 1997, ­under General Than Shwe, the SLORC was abolished and reconstituted as the State Peace and Development Council (SPDC), which ruled the country ­until 2011. 3.  While ­t here is no doubt that the attempted transition to democracy from March 2011 ­until January 2021 failed as a result of the coup on February 1, 2021, I use the term “the transition” and variations such as “the transition period” or “the transition years” throughout the book for ease of reference to this period. 4.  The White House, “Remarks by President Obama at the University of Yangon,” accessed February 18, 2018, https://­obamawhitehouse​.­archives​.­gov​/­t he​-­press​-­office​/­2012​/­11​/­19​/­remarks​ -­president​-­obama​-­university​-­yangon. 5.  Médecins San Frontières Myanmar/Bangladesh, “MSF Surveys Estimate at Least 6,700 Rohingya W ­ ere Killed During the Attacks in Myanmar,” accessed January 4, 2018, http://­w ww​ .­m sf​.­org​/­en​/­a rticle​/­myanmarbangladesh​-­m sf​-­surveys​-­e stimate​-­least​-­6700​-­rohingya​-­were​ -­k illed​-­during​-a­ ttacks. 6.  Thein Sein, “Myanmar’s Complex Transformation: Prospects & Challenges,” July  15, 2013, https://­w ww​.­fi les​.­ethz​.­ch​/­isn​/­167435​/­150713Sein​.­pdf.

187

188   Notes to Pages 2–21 7.  This is not the first time that the state had attempted to broker cease ­fires. The first time was in 1989, led by General Khin Nyunt, then the SLORC’s first secretary. Three main ­factors that encouraged this move w ­ ere the threat from the 1988 student-­led anti-­government movement, the weakening of divided insurgent groups, and an impetus to develop the border areas with the opening of the market (Zaw Oo and Win Min 2007). 8.  I use the term “ethnic minority” ­because I think it is clearest way to refer to the ethnic groups with minority populations vis-­à-­v is the Burman majority, which makes up two-­t hirds of the country’s total population. In my use of this term, I in no way imply that ­t hese groups should be po­liti­cally subsumed to the majority group. 9. ­After the NLD government took power in March 2016, the Settlement and Land Rec­ ords Department changed its name to the Department of Agricultural Land Management and Statistics (DALMS). 10.  According to the 2008 Constitution, Myanmar is divided into twenty-­one administrative units, including seven regions, seven states, one u ­ nion territory (Naypyidaw), one self-­ administered division, and five self-­administered zones. The regions, which used to be called divisions before August 2010, are mainly populated by the Burman majority group, while the states and self-­administered division and zones are dominated by ethnic minorities. 11.  “Speaker of the House Urges More Effort on Protecting the Rights of the Farmers,” Eleven Myanmar, July 1, 2015. 12.  The use of “pacts” in this book differs from the way Dan Slater uses the term (2010). According to Slater, in a “provision pact,” a state buys off elites to increase its power. In a “protection pact,” elites agree to have their power and control of resources reduced in exchange for state protection from contentious domestic politics. 13.  Aye Nai, “Firm Agreement Made on Federal Union, Said Thein Sein,” Demo­cratic Voice of Burma, December 2, 2014. 14.  The presence of the Communist Party of Burma and its significant influence on national politics indicates that the long-­standing conflicts in Myanmar did not start off only with ethnic-­ based claims. However, ­a fter so many de­cades of entrenched fighting between the military government and vari­ous EAOs, some argue that the conflict itself has made ethnicity the core issue in the armed strug­gle. 15.  Myanmar’s 1982 Citizenship Law indicates three categories of citizenship: full citizenship for ­t hose belonging to what are officially considered as native races that existed in the country prior to 1823; associate citizenship for individuals who have one parent in the first category, as well as for individuals who had lived in Myanmar for five consecutive or eight out of the ten years prior to in­de­pen­dence; and naturalized citizenship. 16.  While it is generally understood that the Burman ethnic group has overall benefited from state policies that ­were biased ­towards this group, Campbell and Prasse-­Freeman (2021) argue that class differences within this ethnic group means that lower-­class Burmans have not been able to take advantage of this ethnic privilege. 17.  David Steinberg, “Myanmar: Failed State or Failed Nation,” August 11, 2021, Frontier Myanmar, https://­w ww​.­f rontiermyanmar​.­net​/­en​/­myanmar​-­failed​-­state​-­or​-­failed​-­nation​/­. 18.  Thein Sein, “Myanmar’s Complex Transformation: Prospects & Challenges,” July 15, 2013, https://­w ww​.­fi les​.­ethz​.­ch​/­isn​/­167435​/­150713Sein​.­pdf. 19.  Michael Peel, “The ­Great Land Rush, Myanmar: The Dispossessed,” Financial Times, March 1, 2016, https://­ig​.­ft​.­com​/­sites​/­land​-­rush​-­investment​/­myanmar​/­.

Notes to Pages 22–39   189 20.  According to World Bank figures, the poverty head count ratio, defined as the percentage of the population living below the national poverty line, declined from 42.2  ­percent in 2010 to 24.8 ­percent in 2017. World Bank, “Poverty Headcount Ratio at National Poverty Lines (% of Population)—­Myanmar,” accessed June 30, 2020, https://­data​.­worldbank​.­org​/­indicator​ /­SI​.­POV​.­NAHC​?­locations​=­MM.

Chapter One: The Context for Land Tenure Reform 1.  Interview conducted on August 15, 2015, Yangon. 2.  Interview conducted on May 4, 2017, Maubin Township. 3.  World Bank, “Data: Population, Total—­Myanmar,” accessed June 30, 2020, https://­data​ .­worldbank​.­org​/­indicator​/­SP​.­POP​.­TOTL​?­locations​=­MM. 4.  World Bank, “Data: GDP (Current US$)—­Myanmar,” accessed June 30, 2020. https://­ data​.­worldbank​.­org​/­indicator​/­N Y​.­GDP​.­MKTP​.­CD​?­locations​=­MM. 5.  World Bank, “Data: GNI Per Capita, PPP (Current International $)—­Myanmar,” accessed June 30, 2020, https://­data​.­worldbank​.­org​/­indicator​/­NY​.­GNP​.­PCAP​.­PP​.­CD​?­locations​=­MM. 6. World Bank, “Data: Poverty Headcount Ratio at National Poverty Lines (% of Population)—­Myanmar,” accessed June 30, 2020, https://­data​.­worldbank​.­org​/­indicator​/­SI​.­POV​ .­NAHC​?­locations​=­M M. 7.  Data from the Department of Agriculture, Land Management, Statistics (DALMS), as summarized by the nongovernmental organ­ization GRET in 2017. 8.  The amendments of t­ hese two laws are discussed in chapter 2. 9.  Interview conducted on October 6, 2015, Yangon. 10.  Nonpublic official data from Union-­level SLRD office, dated January 2016. 11.  Interview conducted on October 6, 2015, Yangon. 12.  Interview conducted on January 6, 2015, with principal researchers of GRET study Land Tenure in Rural Lowland Myanmar: From Historical Perspectives to Con­temporary Realities in the Dry Zone and the Delta (Boutry and Allaverdian 2017). 13.  Email communication from another researcher studying the Delta, received on December 5, 2015. 14.  Interview conducted on February 20, 2016, Pathein. 15.  Interview conducted on February 20, 2016, Pathein. 16.  Case presented at the Food and Agriculture Organ­ization office in Yangon on December 23, 2014. 17.  Interview conducted on May 22, 2015, Yangon. 18.  Interview conducted on August 15, 2015, Yangon. 19.  Interview conducted on August 15, 2015, Yangon. 20.  Email correspondence with a member of the Land Core Group in Myanmar, received on September 22, 2015. 21.  Interview conducted on February 19, 2016, Pathein. 22.  Interview conducted on October 7, 2015, Yangon. 23.  Partners Asia Workshop conducted on July 15, 2015, Yangon. 24.  Ibid. 25.  In 2018, efforts w ­ ere made to integrate it into the Ministry of Union Government Office. However, this pro­cess ended a­ fter the 2021 coup.

190   Notes to Pages 40–53 2 6.  Interview conducted on July 30, 2015, Hpa-­A n. 27.  Interview conducted on August 12, 2015, Yangon. 28.  Interview conducted on November 13, 2015, Naypyidaw. 29.  Official minutes of President Thein Sein’s address on June 19, 2012. 30.  Interview conducted on November 13, 2015, Naypyidaw. 31.  Soe Than Lyn, “­Legal Living Permission on Forest Reserves,” Myanmar Times, June 17, 2013, https://­www​.­mmtimes​.­com​/­national​-­news​/­7152​-­legal​-­living​-­permission​-­in​-­forest​-­reserves​ .­html. 32.  Interview conducted on November 14, 2015, Naypyidaw. 33.  Ibid.

Chapter Two: The State’s Quest for Legitimacy Opens Space 1.  Interview conducted on November 13, 2015, Naypyidaw. 2.  Interview conducted on October 8, 2015, Yangon. 3.  For consistency through the book, the word “Tatmadaw” is treated as a proper noun in a non-­English language and spelled with an initial capital letter and no italics, unless it is a citation of original text that treats it differently. 4.  The “Saffron Revolution” in 2007 was significant but much smaller in scope than the 1988 and 2021 mass uprisings. 5.  Seth Mydans, “Monks’ Protest Is Challenging Burmese Junta,” New York Times, September 24, 2007, https://­w ww​.­nytimes​.­com​/­2007​/­09​/­24​/­world​/­asia​/­24myanmar​.­html. 6.  Interview conducted on October 8, 2015, Yangon. 7.  Interview conducted on October 7, 2015, Yangon. 8.  Fareed Zakaria, “The Rise of Illiberal Democracy,” Foreign Affairs, November  1, 1997, https://­w ww​.­foreignaffairs​.­com​/­world​/­rise​-­i lliberal​-­democracy. 9.  Interview conducted on October 8, 2015, Yangon. 10.  Interview conducted on August 19, 2015, Yangon. 11.  “Special Issue on Elections,” Myanmar Times, September 23, 2015. 12.  Workshop or­ga­n ized by the 88 Generation Peace and Open Society, at which they launched their report “Ethnic Brethren’s Tears,” October 30, 2015. 13.  Khin Su Wai, “Land Return Was Not Campaigning: Minister,” Myanmar Times, October 1, 2015, http://­w ww​.­m mtimes​.­com​/­i ndex​.­php​/­national​-­news​/­mandalay​-­upper​-­myanmar​ /­16762​-­land​-­return​-­was​-­not​-­campaigning​-­minister​.­html. 14.  Interview conducted on December 26, 2014, Yangon. 15.  Interview conducted on February 20, 2016, Pathein. 16.  Author field visit to Ayeyarwady Region on November 24, 2014. 17.  The numbers ­were higher at 297,127 acres of land across 655 cases, according to the official minutes from the testimony of the Union Ministry of Defense to Parliament at the seventh regular session of the Union Parliament, July 26, 2015. 18.  The number of cases resolved by the Central Committee was nearly double that of the total cases the PLIC said it scrutinized: 1,623 versus 866. This is likely b ­ ecause the Central Committee continued to receive new cases ­a fter the PLIC ­stopped its work, and some of the cases scrutinized by the PLIC involved more than one h ­ ouse­hold and as many as hundreds. Interview conducted via email on January 29, 2022, New York City.

Notes to Pages 53–66   191 19.  Htoo Thant, “Government Accused of Misleading Parliament on Land Returns,” Myanmar Times, February  20, 2015, http://­w ww​.­mmtimes​.­com​/­index​.­php​/­national​-­news​/­13185​ -­govt​-­accused​-­of​-­misleading​-­mps​-­on​-­land​-­returns​.­html. 20.  “Land Returned ‘to the Wrong Hands,’ ” Demo­cratic Voice of Burma, November 30, 2015. 21.  Author field visits to Ayeyarwady Delta in November 2014. 22.  Interview conducted on June 14, 2014, Naypyidaw. 23.  Interview conducted on February 20, 2016, Pathein. 24.  “Ministries Refusing to Cooperate in Land Grab Probes,” Eleven Myanmar, October 7, 2014. 25.  Caitlin J. Pierce, “Strengthening the Reinvestigation Committee” (Power­point pre­sen­ ta­tion), Namati, Yangon, 2017. 26.  Unpublicized assessments carried out by the NGO GRET in 2018. 27.  Interview conducted on October 7, 2015, Yangon. 28.  Interview conducted on November 14, 2015, Naypyidaw. 29.  Interview conducted on May 22, 2015, Yangon. 30.  Interview conducted on June 17, 2015, Yangon. 31.  Interview conducted on November 6, 2014, Yangon. 32.  Partners Asia Workshop conducted on July 15, 2015, Yangon, 33.  Official transcript from third expert roundtable on July 29, 2015, Yangon. 34.  Official transcript from third expert roundtable on July 29, 2015, Yangon. 35.  First expert roundtable for the NLUP, January 31 to February 1, 2015, Naypyidaw. 36.  Second expert roundtable for the NLUP, March 9–11, 2015, Yangon. 37.  Ibid. 38.  Official transcript from third expert roundtable on July 29, 2015, Yangon. 39.  Interview conducted on August 16, 2015, Yangon. 40.  Interview conducted on May 22, 2015, Yangon. 41.  Interview conducted on July 16, 2015, Yangon. 42.  Interview conducted on September 9, 2015, Yangon. 43.  Interview conducted on August 19, 2015, Yangon. 4 4.  Interview conducted on August 19, 2015, Yangon.

Chapter Three: The Ethnic Politics of Land 1.  Thein Sein, “Myanmar’s Complex Transformation: Prospects and Challenges,” remarks at Chatham House, July  15, 2013, https://­w ww​.­chathamhouse​.­org ​/­sites​/­default​/­fi les​/­public​ /­Meetings​/­Meeting%20Transcripts​/­150713Sein​.­pdf. 2.  Unofficial translation of the 1982 Burma Citizenship Law available at https://­w ww​ .­refworld​.­org ​/­docid​/­3ae6b4f71b​.­html. The original Burmese version is available at https://­ www​.­burmalibrary​.­org​/­en​/ ­burma​-­citizenship​-­law​-­of​-­1982​-­burmese​-­mnmaabhaasaa. 3.  While ethnic minority CSOs ­were the most active in advocating for the rights to their ancestral land, some Burman CSOs w ­ ere also supportive. For example, the national advocacy network called Land in Our Hands (LIOH) sought to unify smallholder farmers from across the country to work ­towards common goals. 4.  This variation within each ethnic armed group is demonstrated by the KNU. Despite being a party to the 2015 NCA, some brigades ­were far more distrustful of the national cease-

192   Notes to Pages 68–75 fire pro­cess than others. Even ­a fter the NCA was signed, armed scuffles intermittently broke out between the KNU and the military. 5.  The British administered colonial Burma as Ministerial Burma or Burma Proper (consisting of lowland areas dominated by Burmans) and the “Frontier Areas Administration” or “Scheduled ­Areas” (consisting of upland areas dominated by ethnic minority groups). 6.  Workshop on Democracy and Decentralization, funded by the Canadian embassy, held on June 18, 2015, Yangon. 7.  Interview conducted on February 16, 2016, Yangon. 8.  In the 1990 election, the NLD ran in nearly all ethnic minority constituencies and overwhelmed the 36 out of 93 ethnic-­based parties (Thawnghmung 2012). 9.  The Shan Nationalities League for Democracy, which won 15 seats at ­union level and 25 at state level, and the Arakan National Party, which won 22 seats at u ­ nion level and 23 at state level, showed the most significant wins. “The 2015 General Election in Myanmar: What Now for Ethnic Politics,” Transnational Institute, December 2, 2015, https://www.tni.org/en/publi​ cation/the-2015-general-election​-in-myanmar-what-now-for-ethnic-politics. 10.  Lawi Weng, “Suu Kyi Tells Ethnic Lawmakers, ‘We Need to Work Together,’ ” Irrawaddy, December 8, 2015, http://­w ww​.­irrawaddy​.­com​/­election​/­news​/­suu​-­k yi​-­tells​-­ethnic​-­lawmakers​ -­we​-­need​-­to​-­work​-­together. 11.  Saw Yan Naing, “Suu Kyi Bound to Face Barriers in Peace Pro­cess,” Irrawaddy, November  18, 2015, http://­w ww​.­irrawaddy​.­org​/­election​/­news​/­analysis​-­suu​-­kyi​-­bound​-­to​-­face​-­barriers​ -­in​-­peace​-­process. 12.  “National Reconciliation: Is NLD Treating the Ethnic Nationalities as Insignificant,” Shan Herald, December 31, 2015. 13.  “President Thein Sein Meets Armed Ethnic Groups, Po­liti­cal Parties,” Global New Light, February 13, 2015. 14.  Two more parties signed the NCA on February  13, 2018. “NMSP, LDU formally sign Nationwide Ceasefire Agreement,” Frontier Myanmar, February 13, 2018, https://­w ww​.­frontier​ myanmar​.­net​/­en​/­nmsp​-­ldu​-­formally​-­sign​-­nationwide​-­ceasefire​-­agreement​/­. 15.  “Myanmar Signs Historic Cease-­Fire Deal with Eight Ethnic Armies,” Radio F ­ ree Asia, October 15, 2015, http://­w ww​.­r fa​.­org​/­english​/­news​/­myanmar​/­deal​-­10152015175051​.­html. 16.  For the full text of Myanmar’s 2015 Nationwide Ceasefire Agreement, please see https://­ peacemaker​.­un​.­org​/­sites​/­peacemaker​.­un​.­org​/­fi les​/­M M ​_­151510​_ ­NCAAgreement​.­pdf. 17.  Swan Ye Htut and Htoo Thant, “NLD Leader Says New Government W ­ ill Further the Peace Pro­cess,” Myanmar Times, December  8, 2015, http://­w ww​.­m mtimes​.­com​/­i ndex​.­php​ /­national​-­news​/­nay​-­pyi​-­taw​/­18029​-­n ld​-­leader​-­says​-­new​-­govt​-­w ill​-­f urther​-­t he​-­peace​-­process​ .­html (this page has since been removed). 18.  For the full text of Myanmar’s 2015 Nationwide Ceasefire Agreement, please see https://­ peacemaker​.­un​.­org​/­sites​/­peacemaker​.­un​.­org​/­fi les​/­M M ​_­151510​_ ­NCAAgreement​.­pdf. 19.  Nyein, “Peace Pro­cess Is Foun­dering, KNU Chief Tells EAOs,” Irrawaddy, May 16, 2019, https://­w ww​.­irrawaddy​.­com​/­opinion​/­a nalysis​/­peace​-­process​-­foundering​-­k nu​-­chief​-­tells​-­eaos​ .­html. 20.  Interview conducted on January 26, 2016, Thailand-Myanmar border. 21.  Interview conducted on July 29, 2015, Hpa-­A n Township. 22.  “KNU Wants Government Recognition of Ethnic Communities and Armed Groups Land Owner­ship Policies,” Karen News, May 26, 2016.

Notes to Pages 75–88   193 23.  Quotes from author’s attendance at the KNU launch of its land policy on May 25, 2016, Yangon. 24.  “KNU Wants Government Recognition of Ethnic Communities and Armed Groups Land Owner­ship Policies,” Karen News, May 26, 2016. 25.  “37 Points Signed as Part of Pyidaungsu Accord,” Global New Light of Myanmar, May 30, 2017. 26.  Customary land workshop hosted by Land Core Group and Transnational Institute on February 14, 2015, Naypyidaw. 27.  NLUP third expert roundtable held on July 29, 2015, Yangon. 28.  Interview conducted on July 27, 2015, Hpa-­A n. 29.  Interview conducted on November 13, 2015, Yangon. 30.  Interview conducted on November 1, 2015, Yangon. 31.  Statement made at Ethnic Partnership for Land and Natu­ral Resources (EPLNR) meeting held on May 24, 2016, Yangon. 32.  Author was the rapporteur for this workshop in Naypyidaw. 33.  Interview conducted on November 1, 2015, Yangon. 34.  The Ethnic Nationalities Protection Law uses the term “taneh taingyintha” once, where “taneh” refers to locale. “taneh taingyintha” is used to mean “indigenous” in the Burmese language, but this is not elaborated further in the text.

Chapter Four: New Market Incentives Shape Norms Chapter 4 is informed by ideas from my article “From Impediment to Adaptation: Chinese Investments in Myanmar’s New Regulatory Environment,” originally published in Journal of Current Southeast Asian Affairs 36, no. 2 (2017). 1.  “Vari­ous Views on the Crackdown of Protestors at Myanmar Copper Mine,” Eleven Media, November 30, 2012. 2.  Thu Zar, “Letpadaung Farmers’ Crop Compensation Demands Denied,” Irrawaddy, January 27, 2016, http://­w ww​.­irrawaddy​.­com​/­burma​/­letpadaung​-­farmers​-­crop​-­compensation​ -­demands​-­denied​.­html. 3.  Chan Mya Htwe. “Wanbao Prepares to Re-­start Letpadaung,” Myanmar Times, February  23, 2016, http://­w ww​.­m mtimes​.­com​/­i ndex​.­php​/ ­business​/­19128​-­wanbao​-­prepares​-­to​-­re​ -­start​-­letpadaung​.­html. 4.  Interview conducted on December 27, 2015, Yangon. 5.  Interview conducted on February 5, 2016, Yangon. 6.  Interview conducted on December 2, 2014, Yangon. 7.  World Bank, “Data: GDP Growth (Annual %)—­China,” accessed December 12, 2022, https://­data​.­worldbank​.­org​/­indicator​/­N Y​.­GDP​.­MKTP​.­K D​.­ZG​?­locations​= ­CN. 8.  Directorate of Investments and Com­pany Administration, “Foreign Investment by Country,” accessed February 8, 2017, http://­w ww​.­d ica​.­gov​.­m m​/­en​/­topic​/­foreign​-­i nvestment​ -­country. 9.  Interview conducted on December 13, 2015, Yangon. 10.  Interview conducted on February 17, 2016, Yangon. 11.  Interview conducted on February 24, 2016, Yangon. 12.  Data received via email dated April 19, 2016.

194   Notes to Pages 88–95 13.  “Burmese Tycoons Part I,” Irrawaddy, June 2000, https://­w ww2​.­irrawaddy​.­com​/­article​ .­php​?­art​_ ­id​=­1923. 14.  Wai Moe, “Tycoons with an Influential Father,” Irrawaddy, November 8, 2007, https:// www2.irrawaddy.com/article.php?art_id=9261. 15.  “Tracking the Tycoons,” Irrawaddy, September 2008, https://­w ww2​.­i rrawaddy​.­com​ /­article​.­php​?­a rt​_­id​=­14151&page​=­1. 16.  Sai Wansai, “Mong Tong Dam Issue Fast Becoming a Shan’s ‘Alamo’?” Burma News Inter­ national, October  5, 2016, https://­w ww​.­bnionline​.­net​/­en​/­opinion​/­op​-­ed​/­item​/­2368​-­mong​-­ton​ -­dam​-­issue​-­fast​-­becoming​-­a​-­shan​-­s​-­alamo​.­html. 17.  “Burmese Tycoons Part I,” Irrawaddy, June 2000, https://­w ww2​.­irrawaddy​.­com​/­article​ .­php​?­art​_ ­id​=­1923. 18.  Kachin Development Networking Group, Tyrants, Tycoons and Tigers: Yuzana Com­ pany Ravages Burma’s Hugawng Valley, August 25, 2010, https://­burmacampaign​.­org​.­uk​/­reports​ /­t yrants​-­t ycoons​-­a nd​-­tigers​-­y uzana​-­company​-­ravages​-­burmas​-­hugawng​-­valley​/­. 19.  Interview conducted on December 13, 2015, Yangon. 20. Jack  J. Hill and Miles Kenney-­Lazar, “Dispossession, Deforestation and Deceit in Myanmar,” New Mandala, November  3, 2021, https://­w ww​.­newmandala​.­org​/­dispossession​ -­deforestation​-­a nd​-­deceit​-­in​-­myanmar​/­. 21.  Ibid. 22.  International Monetary Fund, Myanmar: 2011 Article IV Consultation, IMF Country Report No. 12/104, May 2012, https://­w ww​.­imf​.­org​/­external​/­pubs​/­ft​/­scr​/­2012​/­cr12104​.­pdf. 23.  The Organisation for Economic Co-­operation and Development consists of thirty-­eight advanced countries. 24.  Directorate of Investments and Com­pany Administration, “Yearly Approved Amount of Foreign Investment,” updated May 2016, www​.­dica​.­gov​.­mm​/­sites​/­dica​.­gov​.­mm​/­files​/­documentfiles​ /­2016​_­may​_­fdi​_­by​_­country​_­yearly​_­approved1​.­pdf (this page has since been removed). 25.  The view that clearer land titles would be best for business has been criticized by t­ hose opposing a legally backed private property model as another way to facilitate the concentration of land into the hands of t­ hose who can pay the highest price for it. In the best-­case scenarios, ­t hese transactions are made with willing buyers and willing sellers, but sometimes both parties are not willing, as when an indebted seller sells ­because of financial duress. 26.  Interview conducted on August 12, 2015, Yangon. 27.  Interview conducted on May 25, 2015, Yangon. 28.  Interview conducted on September 11, 2015, Yangon. 29.  “Most Foreign Investors Evasive on ­Human Rights Commitments: Report,” Mizzima News, February 19, 2015, http://­w ww​.­m izzima​.­com​/­news​-­domestic​/­most​-­foreign​-­i nvestors​ -­evasive​-­human​-­rights​-­commitment​-­report. 30.  Workshop or­ga­nized by MCRB on February 24, 2015, Yangon. 31.  Interview conducted on June 15, 2015, Yangon. 32.  En­glish translation of transcript from President Thein Sein’s State of the Union address, delivered through national broadcast on June 19, 2012. 33.  Interview conducted on December 22, 2016, Naypyidaw. 34.  U Myint, “Reducing Poverty in Myanmar: The Way Forward,” pre­sen­ta­tion made at the National Workshop on Rural Development and Poverty Alleviation in Myanmar, Myanmar International Convention Center, Naypyidaw, May 20–22, 2011.

Notes to Pages 95–102   195 35.  Myanmar Development Resource Institute, Framework for Economic and Social Reforms: Policy Priorities for 2012–15 T ­ owards the Long-­Term Goals of the National Comprehensive Development Plan, January 30, 2013, https://­mdricesd​.­wordpress​.­com​/­2013​/­01​/­30​/­publication​-­fesr​/­. 36.  Ibid. 37.  Interview conducted on December 26, 2015, Yangon. 38.  However, one of the main civil society complaints about the final version of the law was that it obliges Myanmar to participate in investor-­state dispute settlement. Many feared that Myanmar would likely not fare well in such negotiations given its weaker position vis-­à-­v is larger transnational corporations and sovereign state investors. 39.  Kyaw Phone Kyaw, “Myanmar’s Tycoons Unfazed by NLD Victory,” Frontier, ­January 7, 2016, https://­w ww​.­frontiermyanmar​.­net​/­en​/­myanmars​-­t ycoons​-­unfazed​-­by​-­nld​-­victory​/­. 40.  Simon Montlake, “Golden Return: Serge Pun Constructs a Real-­Estate Empire in Myanmar,” Forbes Asia, September 2013, https://­w ww​.­forbes​.­com​/­sites​/­simonmontlake​/­2013​/­08​/­28​ /­golden​-­return​-­serge​-­pun​-­constructs​-­a​-­real​-­estate​-­empire​-­in​-­myanmar​/­#1de949532321. 41.  For Yoma’s CSR policies, see https://­yomastrategic​.­com​/­investors​/­corporate​-­policies​/­. 42.  Interview conducted on September 2, 2015, Yangon. 43.  Orville Schell, “In Far-­Flung Myanmar, a Land of Contradictions,” New York Times, January 23, 2015, http://­w ww​.­nytimes​.­com​/­2015​/­01​/­25​/­travel​/­in​-­far​-­flung​-­myanmar​-­a​-­land​-­of​ -­contradictions​.­html. 44.  Austin Ramzy, “Myanmar Po­liti­c al Shift Revives Debate on Sanctions,” New York Times, December  9, 2015, http://­w ww​.­nytimes​.­com​/­2015​/­12​/­09​/­world​/­asia​/­myanmar​-­sanctions​ .­html. 45.  Interview conducted on December 17, 2015, Yangon. 46.  Author corroborated statements with a field visit to one of the com­pany’s agro-­industrial sites on December 1, 2015. 47.  Interview conducted on December 1, 2015, Yangon. 48.  Simon Lewis and John Zaw, “While Myanmar Military Touts Reforms, Villa­gers Still Fight against Land Grabs,” UCA News, August 5, 2015, http://­w ww​.­ucanews​.­com​/­news​/­while​ -­myanmar​-­military​-­touts​-­reforms​-­v illages​-­still​-­fight​-­against​-­land​-­grabs​/­74022. 49.  Interview conducted on October 1, 2015, Yangon. 50.  Interview conducted on January 8, 2016, Yangon. 51.  Interview conducted on May 30, 2015, Yangon. 52.  Nyein Pyae Sone, “The Union of Myanmar Economic Holdings Also Has to Pay,” Irra­ waddy, July 12, 2013, http://­w ww​.­irrawaddy​.­org​/­interview​/­t he​-­union​-­of​-­myanmar​-­economic​ -­holdings​-­a lso​-­has​-­to​-­pay​.­html. 53.  Interview conducted on January 19, 2015, Naypyidaw. 54.  Interview conducted on February 23, 2016, Yangon. 55.  Ibid. 56.  Email communication from academic, April 19, 2016. 57.  Unofficial translation of official minutes from the seventh regular session of Union Parliament, July 26, 2015. 58.  Ibid. 59.  Ibid. 60.  Ibid. 61.  Author field visit conducted on October 1, 2015, a lowland village.

196   Notes to Pages 102–109 62.  Unofficial translation of official minutes from the seventh regular session of Union Parliament, July 26, 2015. 63.  Interview conducted on February 16, 2016, Yangon. 6 4.  Interview conducted on September 5, 2015, via phone call to Beijing. 65. Clare Hammond, “China Launches Local Charm Offensive,” Myanmar Times, May  11, 2016, http://­www​.­mmtimes​.­com​/­index​.­php​/­business​/­20232​-­china​-­launches​-­local​-­charm​-­offensive​ .­html. 66.  Chinese Communist Party, “The Decision on Major Issues Concerning Comprehensively Deepening Reforms in Brief,” Third Plenary Session of the Eigh­teenth Central Committee meeting, November 12, 2013, http://­w ww​.­china​.­org​.­cn​/­china​/­t hird​_­plenary​_­session​/­2014​ -­01​/­16​/­content​_ ­31212602​.­htm. 67.  China Chamber of Commerce of Metals, Minerals and Chemicals Importers and Exporters, “Guidelines for Social Responsibility in Outbound Mining Operations,” October 24, 2014, http://­images​.­mofcom​.­gov​.­cn​/­csr2​/­201812​/­20181224151850626​.­pdf. 68.  Ministry of Commerce, ­People’s Republic of China, “Official of the Department of Outward Investment and Economic Cooperation of the Ministry of Commerce Interprets Newly Revised Mea­sures for Foreign Investment Management,” September 12, 2014, http://­english​ .­mofcom​.­gov​.­cn​/­article​/­newsrelease​/­policyreleasing​/­201409​/­20140900731551​.­shtml. 69.  Interview conducted on August 27, 2015, via phone call to Beijing. 70.  Interview conducted on August 27, 2015, via phone call to Beijing. 71.  Interview conducted on December 15, 2016, via phone call to Rakhine State. 72.  Interview conducted on November 25, 2016, Beijing. 73.  International Institute of Green Finance, Green ­Belt and Road Initiative Center, “Countries of the ­ Belt and Road Initiative (BRI),” updated March  2020, https://­green​-­bri​.­org​ /­countries​-­of​-­t he​-­belt​-­a nd​-­road​-­initiative​-­bri. 74.  “Full Text of Xi’s Signed Article in Myanmese Newspapers,” The Global New Light of Myanmar, Myanma Alinn Daily, The Mirror, January 15, 2020, http://­w ww​.­china​.­org​.­cn​/­world​ /­2020​- ­01​/­16​/­content​_­75619897​.­htm. 75.  Interview conducted on January 7, 2019, Yangon. 76.  “Leader Urges P ­ eople to Be More Open-­M inded about Myitsone Dam,” Myanmar Times, March 15, 2019, https://­w ww​.­mmtimes​.­com​/­news​/­leader​-­urges​-­people​-­be​-­more​-­open​ -­minded​-­about​-­myitsone​-­dam​.­html. 77.  Interview conducted on January 19, 2015, Naypyidaw. 78.  Interview conducted on March 16, 2015, Yangon. 79.  Interview conducted on December 6, 2014, Yangon. 80.  Interview conducted on October 1, 2015, Yangon. 81.  Case presented on December 23, 2014, by con­sul­tant who carried out a study on land tenure administration in Myanmar for the Food and Agriculture Organ­ization of the United Nations. 82.  Field visit carried out on October 1, 2015, Mandalay Region. 83.  Meeting hosted by MCRB on February 24, 2015, Yangon. 84.  Workshop or­ga­nized by MCRB on February 24, 2015, Yangon. 85.  Saw Yan Naing, “Kachin Farmers Urge Government to Address Yuzana Land Confiscation,” Irrawaddy, May 11, 2016, http://­w ww​.­irrawaddy​.­com​/­burma​/­kachin​-­farmers​-­urge​-­govt​ -­address​-­y uzana​-­land​-­confiscation​.­html.

Notes to Pages 112–132   197

Chapter Five: Ayeyarwady Region 1.  The national census conducted in 2014 was the most recent one conducted in Myanmar, with population breakdowns by townships, states, and regions. 2.  SLRD official undisclosed data as of January 2016. 3.  Interview conducted on February 20, 2016, Pathein. 4.  Unofficial translation of address delivered by President U Thein Sein in Naypyidaw on June 19, 2012. 5.  “President Pledges to Provide Land Plots to Landless ­People,” New Light of Myanmar, August 16, 2014. 6.  Interview conducted on October 9, 2015, Yangon. 7.  “Special Issue on Elections,” Myanmar Times, September 23, 2015. 8.  Salai Thant Zin, “USDP Eyes Big Wins in Burma’s Rice Bowl,” Irrawaddy, September 30, 2016, http://­w ww​.­irrawaddy​.­org​/­election​/­news​/­usdp​-­eyes​-­big​-­wins​-­in​-­burmas​-­rice​-­bowl. 9.  Interview conducted on August 1, 2016, Yangon. 10.  Interviews conducted on May 1–2, 2017, Pathein. 11.  Interview conducted on February 20, 2016, Pathein. 12.  Interview conducted on February 20, 2016, Pathein. 13.  Interview conducted on December 5, 2015, Maubin. 14.  Interview conducted on February 20, 2016, Pathein. 15.  Ibid. 16.  Interview conducted on October 8, 2015, Yangon. 17.  Interview conducted on October 8, 2015, Yangon. 18.  Interview conducted on October 9, 2015, Yangon. 19.  Interview conducted on December 5, 2015, Maubin. 20.  Interview conducted on August 16, 2015, Yangon. 21.  Author attendance at an Ayeyarwady Farmers Union meeting held on December 5, 2015, Maubin. 22.  Interview conducted on October 9, 2015, Yangon. 23.  Ibid. 24.  Interview conducted on December 5, 2015, Maubin. 25 Interview conducted on February 19, 2016, Pathein. 26.  Ibid. 27.  Interview conducted on September 9, 2015, Yangon. 28.  Email communication from Namati staff, August 30, 2016. 29.  Interview conducted on August 12, 2015, Yangon. 30.  Interview conducted on October 2, 2015, Yangon. 31.  Interview conducted on August 1, 2016, Yangon. 32.  Ibid. 33.  Interview conducted on August 12, 2015, Yangon. 34.  Interview conducted on August 19, 2015, Yangon. 35.  Interview conducted on February 19, 2016, Pathein. 36.  Salai Thant Zin, “President Tells State, Regional Officials to Wrap Up Land-­Grab Probes,” Irrawaddy, September 20, 2018, https://­w ww​.­irrawaddy​.­com​/­news​/­burma​/­president​ -­tells​-­state​-­regional​-­officials​-­w rap​-­land​-­grab​-­probes​.­html. 37.  Interview conducted on February 20, 2016, Pathein.

198   Notes to Pages 134–148

Chapter Six: Chin State Chapter 6 is informed by ideas from my “ ‘Fragmented Sovereignty’ over Property Institutions: Developmental Impacts on the Chin Hill Communities,” originally published in In­de­pen­dent Journal of Burmese Scholarship 1, no. 1 (2016). 1.  For the text of the 1948 Chin Special Division Act, see https://­w ww​.­burmalibrary​.­org​ /­docs25​/­1948​_­12​_ ­07​_­Government​_­of​_­t he​_­Union​_­of​_ ­Burma​_ ­Act​_ ­No​.­(48)​_­en​.­pdf. 2.  Burma Proper, also known as Ministerial Burma, consisted of lowland areas dominated by the Burman ethnic group and was administered separately from the Frontier Areas Administration or Scheduled Areas. 3.  Interview conducted on May 7, 2015, Falam Township in Chin State. The bound­aries between the Special Division and Burma Proper did not stay fixed; they shifted again when Chin State was declared as a state in 1974. 4.  Interview conducted on November 12, 2015, Yangon. 5.  Interview conducted on May 7, 2015, Falam Township in Chin State. 6.  Interview conducted on May 7, 2015, Falam Township in Chin State. 7.  This was verified in a field trip conducted by the author in February 2013 in Mindat Township in southern Chin State. 8.  Interview conducted on December 23, 2013, Yangon. 9.  Interview conducted on December 23, 2013, Yangon. 10.  Interview conducted on December 23, 2013, Yangon. 11.  Interview conducted on November 19, 2016, Yangon. 12.  Ei Ei Toe Lwiw, “Chin Urge Transparency on Mwe Taung Mining Proj­ect,” Myanmar Times, September 20, 2012, https://­w ww​.­m mtimes​.­com​/­national​-­news​/­8207​-­chin​-­u rge​ -­transparency​-­on​-­mwe​-­taung​-­mining​-­project​.­html. 13.  Zarni Mann, “Chinese-­Backed Nickel Mining Proj­ect Draws Concerns in Chin State,” Irrawaddy, January 31, 2014, http://­w ww​.­irrawaddy​.­org​/­burma​/­chinese​-­backed​-­nickel​-­mining​ -­project​-­draws​-­concerns​-­chin​-­state​.­html. 14.  Interview conducted on March 5, 2015, Kalay Township in Sagaing. 15.  Interview conducted on October 15, 2015, Yangon. 16.  SLRD official undisclosed data as of January 2016. 17.  Interview conducted on May 7, 2015, Falam Township in Chin State. 18.  Interview conducted on October 15, 2015, Yangon. 19.  Interview conducted on May 21, 2017, Yangon. 20.  Interview conducted on November 20, 2016, Yangon. 21.  The response by ­people in Chin State ­after the coup starkly demonstrated how they ­were forced to break from their typically apo­liti­cal lives to enter po­liti­cal society. The Chin ­people ­were among the first to mount armed attacks on the military junta through the creation of the Chinland Defense Force on April 4, 2021. “Who Are the Chinland Defense Force (CDF), Chin Myanmar,” Myanmar Speaks, May 1, 2021, https://­w ww​.­myanmarspeaks​.­com​/­posts​ /­who​-­are​-­t he​-­chin​-­defence​-­force​-­myanmar. 22.  Interview conducted on May 6, 2015, Falam Township in Chin State. 23.  Although the CNF was the only armed group in Chin State, it is considered by many Chin groups to not represent their po­liti­cal strug­gles. Some blame the armed group for exacerbating the divisions among Chin society, especially the Chin in Falam Township, when the

Notes to Pages 148–158   199 CNF ousted and attempted to assassinate one of their own, the then CNF president, No Than Khap. Interview conducted on May 6, 2015, Falam Township in Chin State. Second interview conducted on September 21, 2020, New York City, with a Western academic who has studied and written about Chin politics for the past de­cade. 24.  India International Centre, “Conference on Indo-­Burma Relation, 16–17 September 2004,” accessed April  12, 2018, https://­www​.­chinhumanrights​.­org​/­a​-­struggle​-­for​-­self​-­determination​-­in​ -­burma​/­. 25.  “Statement of the Chin National Conference,” Chinland Guardian, November 15, 2013, http://­c hinlandguardian​ .­c om​ /­i ndex​ .­p hp​ /­c hin​ -­n ews​ /­i tem​ /­2 029​ -­s tatement​ -­o f​ -­t he​ -­c hin​ -­national​-­conference (this page has since been removed). 26.  Interview conducted on June 20, 2014, Yangon. 27.  Interview conducted on May 7, 2015, Falam Township in Chin State. 28.  In the past, ­t here ­were attempts to update and codify customary laws around inheritance, which w ­ ere appended to the 1957 update of the Chin Special Division Act (Ninu 2018). 29.  Interview conducted on November 16, 2016, Yangon. 30.  Interview conducted on November 17, 2016, Yangon. 31.  Interview conducted on September 30, 2020, via telephone. 32.  “Report on Chin Customary Law Workshop,” proceedings of workshop held May 22– 24, 2018, Hakha, Chin State.

Chapter Seven: Kayin State or Kawthoolei Chapter 7 is informed by ideas from my article “The Forging of Legitimate Authority in the Ceasefire Mixed Control Karen Areas of Myanmar,” originally published in Journal of Con­ temporary Asia 52, no. 2 (2021): 226–246, https://­doi​.­org​/­10​.­1080​/­0 0472336​.­2021​.­1887321. 1.  Interview conducted on November 6, 2015, Yangon. 2.  For more details about the history of the KNU’s formation, refer to the official website of the KNU at https://­w ww​.­k nuhq​.­org​/­public​/­en​/­about​/ ­background. 3.  A “Karen state” is dif­fer­ent from “Kayin State.” The former refers to the concept of a state controlled by the Karen, while the latter is the official name given by the Myanmar government. 4.  “KNLA Position with Regard to Ceasefire,” Burmalink, October 14, 2015, http://­w ww​ .­burmalink​.­org​/­k nla​-­position​-­w ith​-­regard​-­to​-­ceasefire​/­. 5.  United Nations High Commissioner for Refugees, “Figures at a Glance,” accessed July 14, 2017, www​.­unhcr​.­org​/­figures​-­at​-­a​-­glance​.­html (site updated). 6.  Interview conducted on July 17, 2015, Yangon. 7.  Interview conducted on July 17, 2015, Yangon. 8.  Interview conducted on July 17, 2015, Yangon. 9.  “KNU Agricultural Department Decide to Prioritize Mea­sur­ing Land, Solving Land Disputes,” BNI, June 7, 2018, https://­w ww​.­bnionline​.­net​/­en​/­news​/­k nu​-­agricultural​-­department​ -­decide​-­prioritize​-­measuring​-­land​-­solving​-­land​-­disputes. 10.  Author participation in meeting at KESAN on January 27, 2016, Chiang Mai. 11.  Fred Pearce, “Amid Tensions in Myanmar, an Indigenous Park of Peace Is Born,” Yale Environment 360, November 30, 2020, https://­e360​.­yale​.­edu​/­features​/­a mid​-­tensions​-­i n​ -­myanmar​-­a n​-­i ndigenous​-­park​-­of​-­peace​-­is​-­born. 12.  Unofficial translation of the April  2012 bilateral ceasefire agreement between GOM and KNU.

200   Notes to Pages 158–168 13.  Interview conducted on July 29, 2015, Hpa-­A n Township. 14.  Interview conducted on December 4, 2015, Yangon. 15.  The government’s SLRD office is based in Hpa-­An town, the official capital of Kayin State, whereas the KNU’s KAD has an administrative office on the Thailand-­Myanmar border, while carrying out all its ground operations across Kawthoolei. 16.  SLRD official undisclosed data as of January 2016. 17.  Interview conducted on March 25, 2018, Thailand-­Myanmar border. 18.  Interview conducted on July 27, 2015, Hpa-­A n Township. 19.  Interview conducted on July 29, 2015, Hpa-­A n Township. 20.  “KNU New Land Laws a Major Barrier to Peace,” Karen News, August 2, 2013. 21.  Interview conducted on January 23, 2016, Thailand-­Myanmar border. 22.  Ibid. 23.  Ibid. 24.  Interview conducted on August 31, 2015, Yangon. 25.  Interview conducted on January 27, 2016, Thailand-­Myanmar border. Facts confirmed with another Karen key in­for­mant on October 26, 2017, Yangon. 26.  Ibid. 27.  Interview conducted on July 27, 2015, Hpa-­A n Township. 28.  Interview conducted on September 7, 2015, Yangon. 29.  Myo Lwin, “Businesses to Promote Peace,” Myanmar Times, April 5, 2017, https://­w ww​ .­mmtimes​.­com​/­national​-­news​/­25582​-­businesses​-­to​-­promote​-­peace​.­html. 30.  Interview conducted on July 17, 2015, Yangon. 31.  “Myanmar’s New Road to Prosperity,” Asian Development Bank, December 2, 2014, https://­w ww​.­adb​.­org​/­news​/­features​/­myanmar​-­s​-­new​-­road​-­prosperity. 32.  “Fighting between Tatmadaw and DKBA Soldiers along the Asian Highway Displaces Villa­gers in Dooplaya District, July 2015,” KHRG, September 3, 2015, https://­k hrg​.­org​/­2015​/­09​ /­15​-­15​-­nb1​/­fighting​-­between​-­tatmadaw​-­a nd​-­d kba​-­soldiers​-­a long​-­asian​-­highway​-­displaces. 33.  Interview conducted on July 30, 2015, Hpa-­A n Township. 34.  Interview conducted on November 6, 2015, Yangon. 35.  Email communication with Alex Htoo of KESAN, March 19, 2017. 36.  Interview conducted on July 29, 2015, Hpa-­A n Township. 37.  “KNU No Decision to Build Hydro Power Dam: Karen Communities Continue Opposing the Proj­ect.” Karen News, May 9, 2016, https://­karennews​.­org​/­2016​/­05​/­k nu​-­no​-­decision​ -­to​-­build​-­hydro​-­power​-­dam​-­karen​-­communities​-­continue​-­opposing​-­t he​-­project​/­. 38.  Interview conducted on January 23, 2016, Thailand-­Myanmar border. 39.  Author participation in workshop on “Democracy and Nationalities in Myanmar” on June 19, 2015, Yangon. 40.  “Karen Animists: We Want the Right to Live on Our Land and Worship Our Gods,” Karen News, July 16, 2015. 41.  Official summary from the working group on land and natu­ral resources, Karen National Conference in February 2017, Hpa-­A n Township. 42.  Ibid. 43.  “KNU New Land Laws a Major Barrier to Peace,” Karen News, August 2, 2013, http://­ karennews​.­org​/­2013​/­08​/­k nu​-­new​-­land​-­laws​-­a​-­major​-­barrier​-­to​-­peace​/­​.­ 4 4.  Author visit to KNU Liaison Office on May 18, 2016, Hpa-­A n Township. 45.  Interview conducted on August 31, 2015, Yangon.

Notes to Pages 168–183   201 46.  Zay Zar Lin, “KMA Group Returns Seized Land to Former O ­ wners,” Myanmar Times, January 13, 2016, http://­w ww​.­m mtimes​.­com​/­i ndex​.­php​/ ­business​/­18449​-­k ma​-­g roup​-­returns​ -­seized​-­land​-­to​-­former​-­owners​.­html. 47.  “CB Bank Chairman ‘Vows to Return Seized Farmland,’ ” Eleven Myanmar, January 11, 2016. 48.  KHRG, home page, accessed on August 8, 2017, http://­k hrg​.­org​/­. 49.  KESAN, home page, accessed on August 8, 2017, http://­new​.­kesan​.­asia​/­index​.­php. 50.  “Land Rights Activists Are Newest Po­liti­cal Prisoners-­HRW,” Mizzima, August 17, 2015, http://­w ww​.­mizzima​.­com​/­news​-­domestic​/­land​-­rights​-­activists​-­are​-­newest​-­political​-­prisoners​ -­hrw#sthash​.­xQW8BLxQ​.­FJJne7zf​.­dpuf. 51.  Ibid. 52.  Email correspondence from the Myanmar ­L egal Aid Group dated September  10, 2015. 53.  “Land Rights Activists Are Newest Po­liti­cal Prisoners—­HRW,” Mizzima, August 17, 2015, http://­w ww​.­mizzima​.­com​/­news​-­domestic​/­land​-­rights​-­activists​-­are​-­newest​-­political​-­prisoners​ -­hrw#sthash​.­xQW8BLxQ​.­FJJne7zf​.­dpuf. 54.  Interview conducted on August 31, 2015, Yangon. 55.  Naw Noreen, “Land Rights Proponent Shot Dead in Hpa-­A n,” Demo­c ratic Voice of Burma, July 3, 2015, https://­english​.­dvb​.­no​/­land​-­rights​-­proponent​-­shot​-­dead​-­in​-­hpa​-­a n​/­. 56.  Author attendance at the Land Deal Politics Initiative Conference on June 6, 2015, Chiang Mai. 57.  Interview conducted on February 18, 2016, Yangon. 58.  Interview conducted on February 18, 2016, Yangon. 59.  Interview conducted on May 19, 2016, Hpa-­A n Township. 60.  Interview conducted on July 30, 2015, Hpa-­A n Township. 61.  Interview conducted on July 30, 2015, Hpa-­A n Township.

Conclusion 1.  SiuSue Mark, “What’s in a Term? The Challenge of Finding Common Terminology for Ethnic Alliance-­Building in Myanmar’s Peace Pro­cess,” Torino World Affairs Institute T.note, no. 72, December 7, 2018, https://­w ww​.­t wai​.­it​/­journal​/­t note​-­72​/­. 2.  Poppy McPherson, “Aung San Suu Kyi: Myanmar’s G ­ reat Hope Fails to Live Up to Expectations,” Guardian, March  30, 2017,https://­w ww​.­t heguardian​.­com​/­world​/­2017​/­mar​/­31​ /­aung​-­san​-­suu​-­k yi​-­myanmars​-­great​-­hope​-­fails​-­to​-­live​-­up​-­to​-­expectations. 3.  Melissa Crouch, “The Constitutional Fiction of Myanmar’s Coup,” Jurist, February  17, 2021, https://­w ww​.­jurist​.­org ​/­commentary​/­2 021​/­02​/­melissa​-­c rouch​-­myanmar​-­coup​ -­constitution​/­. 4.  Grant Peck, “Election Watchdog Says No Credible Proof of Myanmar Fraud,” AP News, May  17, 2021, https://­apnews​.­com​/­a rticle​/­myanmar​-­religion​-­elections​-­health​-­coronavirus​ -­pandemic​-­bd8bf157e3404c77c4f9a85f41dc7ae1. 5.  “UN Expert Calls for Myanmar Action as Death Toll Tops 2000,” Al Jazeera, June 23, 2022, https://­w ww​.­a ljazeera​.­com​/­news​/­2022​/­6​/­23​/­u n​-­expert​-­c alls​-­for​-­myanmar​-­action​-­a s​ -­death​-­toll​-­tops​-­2000. 6.  Assistance Association for Po­liti­cal Prisoners, “Daily Briefing in Relation to the Military Coup,” October 14, 2022, https://­aappb​.­org​/­​?­lang​= e­ n.

202   Notes to Pages 183–185 7.  On March 21, 2022, the United States determined that the Burmese military committed [genocide] against the Rohingya. U.S. Department of State, “Genocide, Crimes Against Humanity and Ethnic Cleansing of Rohingya in Burma,” https://­w ww​.­state​.­gov​/ ­burma​ -­genocide​/­. 8.  Billy Ford and Jason Tower, “Myanmar Strug­gles to Reverse a Coup; Democracies Can Help,” United States Institute of Peace, December 9, 2021, https://­w ww​.­usip​.­org​/­publications​ /­2021​/­12​/­myanmar​-­struggles​-­reverse​-­coup​-­democracies​-­can​-­help. 9.  White House, “Executive Order on Blocking Property with Re­spect to the Situation in Burma,” February 11, 2021, https://­w ww​.­whitehouse​.­gov​/­briefing​-­room​/­presidential​-­actions​ /­2021​/­02​/­11​/­executive​-­order​-­on​-­blocking​-­property​-­w ith​-­respect​-­to​-­t he​-­situation​-­in​-­burma​/­. 10.  Simon Lewis and Humeyra Pamuk, “U.S. Blocked Myanmar Junta Attempt to Empty $1 Billion New York Fed Account—­Sources,” ­Reuters, March 4, 2021, https://­w ww​.­reuters​.­com​ /­a rticle​ /­u s​ -­myanmar​ -­p olitics​ -­u sa​ -­fed​ -­e xclusive​ /­e xclusive​ -­u​ -­s​ -­b locked​ -­myanmar​ -­junta​ -­attempt​-­to​-­empty​-­1​-­billion​-­new​-­york​-­fed​-­account​-­sources​-­idUSKCN2AW2MD. 11.  Richard Horsey, “Myanmar on the Brink of State Failure,” International Crisis Group, April 9, 2021, https://­w ww​.­crisisgroup​.­org​/­asia​/­south​-­east​-­asia​/­myanmar​/­myanmar​-­brink​-­state​ -­failure. 12.  Khine Win, “The Currency Crisis and Why We Should Brace for Stagflation,” Frontier Myanmar, October 10, 2021, https://­w ww​.­f rontiermyanmar​.­net​/­en​/­t he​-­c urrency​-­crisis​-­a nd​ -­why​-­we​-­should​-­brace​-­for​-­stagflation​/­. 13.  World Bank, “Myanmar Economy Expected to Contract by 18 ­Percent in FY2021,” July 26, 2021, https://­w ww​.­worldbank​.­org​/­en​/­news​/­press​-­release​/­2021​/­07​/­23​/­myanmar​-­economy​ -­expected​-­to​-­contract​-­by​-­18​-­percent​-­in​-­f y2021​-­report. 14.  World Bank, “Myanmar Economic Monitor: Reforms Reversed,” July 2022, https://­ pubdocs​.­worldbank​.­org​/­en​/­597471658359366101​/­July​-­MEM​-­2022​-­Final​.­pdf. 15.  Bertil Lintner, “Why the Tatmadaw ­Won’t Crack in Myanmar,” Asia Times, April 20, 2021, https://­asiatimes​.­com​/­2021​/­04​/­why​-­t he​-­tatmadaw​-­wont​-­crack​-­in​-­myanmar​/­. 16.  “Myanmar Coup Leader Admits Not in Full Control of Country,” Irrawaddy, June 4, 2021, https://­w ww​.­i rrawaddy​.­com​/­news​/­burma​/­myanmar​-­coup​-­leader​-­admits​-­not​-­i n​-­f ull​ -­control​-­of​-­country​.­html. 17.  For the full text of the Federal Democracy Charter, see https://­crphmyanmar​.­org​/­w p​ -­content​/­uploads​/­2021​/­04​/­Federal​-­Democracy​-­Charter​-­English​.­pdf. 18.  Billy Ford, “A New Myanmar Forum Aims to Unite Myanmar Forces,” United States Institute of Peace, November 3, 2021, https://­w ww​.­usip​.­org​/­publications​/­2021​/­11​/­new​-­myanmar​ -­forum​-­a ims​-­unite​-­democratic​-­forces.

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Index

academics. See scholarship accumulation by dispossession, 21 activism, 43–44, 123–25, 129–31, 168–69, 182. See also grassroots mobilization; po­liti­cal activism; reform; social movements Adas, Michael, 113–14 advocacy co­a li­tions, 122, 133, 144 Agnew, John A., 17 agriculture, 32, 46, 89–90, 113–18, 138, 143. See also farmer ­unions; land concessions; smallholder farmers Agriculture and Farmer Federation of Myanmar (AFFM), 123–24 Alex Htoo, 75 Allaverdian, Celine, 35 All Burma Monks Alliance, 48 Anderson, Benedict R. O’G., 19, 148 Aquaculture Law (1989), 31, 114 Arakan National Party, 106 Ar Yone Oo, 146–47 The Asia Foundation, 48–49, 156 Asia Highway, 161–64 Asia Indigenous P ­ eoples Pact, 81 Asian Development Bank (ADB), 2–3, 23, 32, 95–96, 162 Asia World Com­pany Ltd., 88, 94 Assistance Association for Po­liti­cal Prisoners, 34, 183 Association Law (2014), 120 Association of Southeast Asian Nations (ASEAN), 32, 183 Aung Moe Win, 118, 121–22, 126, 128 Aung San, 18, 136 Aung San-­Attlee Agreement, 68, 136

Aung San Suu Kyi, 1–2, 14, 56, 71–72, 84, 107, 182–83 Ayer Yar Shwe Wah, 13, 54 Ayeyarwady Farmers Union (AFU), 126–28, 133 Ayeyarwady Region: and activism, 129–31; and agriculture, 113–15; background on the, 8–9, 112; and CBOs, 122–24; and civil society, 16, 118–25, 174; and colonialism, 113–14; and democ­ratization, 111–12; and farmer ­unions, 120–22, 126–28, 133; and land confiscation, 114, 124, 178; and land conflicts, 8, 35–36, 115–18, 124, 126–31, 177; and LUCs, 35–36, 112; and po­liti­cal opportunities, 115–18; po­liti­cal parties of the, 116–17; and po­liti­cal strategies, 125–31 Ayeyarwady Support Group for Resolving Farmers’ Issues, 118, 127 Ba U Gyi, 153 ­Belt and Road Initiative (BRI), 104, 107 Benda-­Beckmann, Franz von, 28 Biden, Joseph R., 183 Bieler, Andreas, 22–23, 91 Bissinger, Jared, 89 Border Guard Forces (BGFs), 31, 154–55, 161–62, 171 Boutry, Maxime, 35 Bowman, Vicky, 84 British Chamber of Commerce, 92 Buddhism, 45, 47–48, 67–68, 72 bureaucracy, 24, 46, 54–55 The Burma Delta (Adas), 113

217

218  Index Burma Environmental Working Group (BEWG), 32 Burma In­de­pen­dence Army, 68 Burma Proper, 68, 136, 153, 192n5, 198n2 Burma Socialist Program Party (BSPP), 69, 187n2 “The Burmese Way to Socialism,” 30–31, 68–69 Business and H ­ uman Rights Resource Centre, 93–94 Business for Peace, 161 Calhoun, Craig, 4 Callahan, Mary P., 44, 109 Campbell, Stephen, 22, 188n16 Carothers, Thomas, 11 case studies. See Ayeyarwady Region; Chin State; Kayin State ceasefire capitalism, 32, 87, 90, 152, 161–62, 175 ceasefires, 2, 4, 18, 24, 31–32, 65–76, 154, 158–59, 166. See also Nationwide Ceasefire Agreement (NCA) Central Committee for National Land Resources Management, 53–54, 58–59, 90, 190n18 Central Reinvestigation Committee on Confiscated Farmlands and Other Lands, 56 Chatterjee, Partha, 12–13, 146 Chayanov, Alexander V., 139 Cheesman, Nick, 19, 37–38 Chettiar from Madras, 113–14 China, 84–90, 94–96, 104–7, 110, 142, 181–83 China International Trust Investment Corporation (CITIC), 106 China-­Myanmar Economic Corridor (CMEC), 107 China-­Myanmar Friendship Association, 105 China Power Investment Corporation, 94 Chin Green Network, 146 Chin Hills Regulation (1896), 30, 134, 139 Chin H ­ uman Rights Organ­ization (CHRO), 147, 149–50

Chinland Defense Force, 198n21 Chinland Natu­ral Resources Watch Group, 142, 147 Chin National Conference (2013), 148–49 Chin National Front (CNF), 81, 135, 138, 147–49, 152, 179, 198n23 Chin Natu­ral Resources Watch Group, 142 Chin Special Division Act (1948), 74, 134, 150 Chin State: agriculture, 138; background on the, 8–9, 134; and civil society, 16, 145–50, 174, 177; and colonialism, 135–36; and customary practices, 134–35, 137–41, 143–45, 148–50; and land contestation, 8, 142, 145; the moral economy of, 139–42; and po­liti­cal opportunities, 143–45; the po­liti­cal system of, 136–37; and poverty, 134; and shifting cultivation, 143–45; tribes of, 135–39 Chris­tian­ity, 136, 140 Cin Khan Lian, 140, 149 citizenship, 10–12, 18–19, 38, 65–66, 146, 176, 188n15 Citizenship Law (1982), 65–66, 188n15 civil disobedience movement (CDM), 182 civil society: and activism, 21, 23, 43–44, 50–51, 55, 57, 64, 85, 112–13, 129–33, 168; and aid, 48; and the church, 145; definition of, 15; and environmentalism, 96; ethnic, 73, 76–79, 82; and justice, 4, 15, 24; and the NLUP, 59; and po­liti­cal engagement, 48–49, 73, 112; and postcolonial states, 12–13; and reform, 24, 59–61, 174; resurrection of, 15, 174; the role of, 16, 178; and scholarship, 10; and the state, 8–9, 15, 23, 39–40, 145. See also po­liti­cal society; progressivism civil society organ­izations (CSOs), 8, 20, 43–44, 55, 64, 66–67, 80, 135, 142, 147, 168–69 colonialism, 18, 29–30, 67–68, 81, 113–14, 119, 134–37, 153. See also ­Great Britain Committee Representing the Pyidaungsu Hluttaw (CRPH), 184 Communist Party of Burma, 188n14

Index  219 community-­based organ­izations (CBOs), 120–24. See also grassroots mobilization Constitution (1947), 30, 68, 136 Constitution (1974), 30–31, 69, 187n2 Constitution (2008), 2, 15, 30–31, 39–40, 47, 69–70, 82, 176, 182–83, 185, 187n1, 188n10 constructivism, 19 corporate social responsibility (CSR), 91–98, 104–5, 181 coup d’etat, 17–18, 20, 30, 38, 45, 68–69, 182–85, 187nn2–3, 198n21 COVID-19, 184 critical realism, 4 Cung Lian Thawng, 140 customary land systems, 8–10, 29–30, 57, 60–62, 66–67, 73–80, 134–50, 157–58, 178. See also land tenure systems Cyclone Nargis, 47–48, 112, 122–23 the Delta. See Ayeyarwady Region Demo­cratic Karen Buddhist Army (DKBA), 154, 161–62 demo­cratic land institutions, 10–11 democ­ratization: and the Ayeyarwady Region, 112; challenges to, 28; and citizenship, 10–11; criticism of Myanmar’s, 1–2; and land politics, 3, 7–8, 10–13, 15–16; localized approaches to, 111; methods for understanding, 7–9; and the military, 45; and taingyintha, 18–19; theory, 14–17, 119–20, 145, 175–81. See also pacts; road map to democracy Department of Agricultural Land Management and Statistics (DALMS), 53, 90, 188n9 Diamond, Larry, 15 Directorate for Investments and Com­pany Administration (DICA), 85, 91, 96 Directorate of Procurement at the Ministry of Defence, 86–87 Disposal of Tenancies Law (1963), 30, 36, 74, 114, 138 disruptive politics. See social movements donor funding, 122–23, 126, 129, 145

Dry Zone, 35, 113 dual administration, 17, 151–52, 155–56, 158, 160, 165–67, 170 Egreteau, Renaud, 15 Eh Klu Say, 75 88 Generation, 46, 49–50, 53–54, 61, 63–64, 122, 169, 171 elections: 1990, 1–2, 116; 2010, 1, 65, 70, 85, 113, 155; 2015, 70, 116–17, 137, 155; 2020, 182; and accountability, 49–50; and legitimacy, 11; and poverty, 11–12; results, 192n9; and rural p ­ eople, 118–19 elites: and Chin State, 26, 148, 150, 174, 177; and customary land systems, 7, 36; and exploitation, 3, 18, 25, 28, 37; and the law, 28, 37, 126, 173; and the military, 22, 24; and nationhood, 19; and pacts, 7, 12, 188n12; and power, 11; and regulation, 91, 97; and the state, 12, 16, 23 environmental impact assessment (EIA), 95, 105–6. See also regulations Environmental Protection Law (2012), 96 ethnic armed organ­izations (EAOs): and ceasefires, 2, 24, 31, 66, 71–72, 87; and customary law, 17–18, 30, 73–76; and interim arrangements, 166; and land contestation, 10, 73–74, 175; strategies of, 20, 66–67, 82, 174, 179; and the Thailand-­ Myanmar border, 156. See also specific organ­izations ethnic cleansing. See Rohingya Ethnic Community Development Forum (ECDF), 78–79 ethnic identity, 20, 66–68, 80–82, 174 ethnic minority groups, 6; and activism, 4, 20–21; and citizenship, 19; definition of, 188n8; and elections, 70; and equal rights, 19, 65–66, 80–82, 176; and federalism, 20, 70–71; and indigeneity, 80–81; and land, 3, 8–9, 19–20, 35, 57, 60, 62, 67, 73–79, 82, 111, 175; and nationhood, 80; and power sharing, 2, 18, 66–67, 71, 82, 148–49, 161, 172, 179; and the state, 18–19; and VFV land, 33. See also Chin State; federalism; Kayin State

220  Index Ethnic Nationalities Protection Law (2015), 82, 193n34 Ethnic Origins of Nations (Smith), 19 Ethnic Partnership for Land and Natu­ral Resources, 141 Executive Order 1/64, 30–31, 36, 132 Farmers and Fishermen Support Group (FFSG), 123–24 Farmer’s Rights Protection Law (1963), 30, 114 farmer ­unions, 120–23, 126–28, 133. See also agriculture Farmland Administrative Body (FAB), 33, 37–38, 54, 56 Farmland Law (2012), 33–34, 38, 54, 56–58, 115, 135, 143 Faxon, Hilary O., 36 Federal Democracy Charter, 185 federalism, 17, 20, 38, 68–71, 73, 75–78, 82–83, 148–49, 175, 179–80. See also ethnic minority groups Food Security Working Group (FSWG), 140–41 Ford, Michelle, 91, 96 Forest Department, 35, 40–44, 57–58, 60, 64, 95, 143–45 Form 105, 27 Fox, Jonathan A., 11 Framework for Economic and Social Reforms, 95 ­f ree prior and informed consent (FPIC), 74, 93, 109 From Mobilization to Revolution (Tilly), 15 Frontier Areas, 67, 136, 192n5, 198n2. See also Scheduled Areas Gellner, Ernest, 19 General Administration Department (GAD), 27–28, 38–39, 54, 60, 69, 132 genocide. See Rohingya global land rush, 3, 21, 24, 80, 180. See also investment; transnational capital Global Witness, 105 Governing the Commons (Ostrom), 77 Gramsci, Antonio, 14

grassroots mobilization, 7, 12, 16, 120, 122, 177–78, 180, 185. See also community-­ based organ­izations (CBOs); progressivism; reform; social movements Gravers, Mikael, 67 ­Great Britain, 29–30, 67–68, 113, 119, 192n5. See also colonialism ­Great Depression, 114, 116 Green Peasant Institute (GPI), 117, 124 Guidelines for Social Responsibility in Outbound Mining Operations (2014), 105 Hall, Derek, 142 Harvey, David, 21 hegemony, 14, 44. See also legitimacy hpoun kan, 45, 49 Htay Oo, 57 Hti La Aung, 47–48 ­human rights, 93–94, 104, 147, 164, 168–69, 176, 182 ­Human Rights Watch, 42, 169 hybrid regimes, 11 hydropower proj­ects, 88–89, 165, 171 IGE Group of Companies, 88–89 ­imagined po­liti­cal community, 148 indigeneity, 18, 20, 80–82, 179 informal fees, 29, 108, 159 interim arrangements, 166 internally displaced persons (IDPs), 158 International Crisis Group (ICG), 46, 91, 97, 100 International Finance Corporation, 96 International Liaison Department of the Communist Party of China, 105 International Monetary Fund, 91 investment, 21–24, 31, 34, 41, 80, 84–97, 100, 104–10, 164–65, 180, 184. See also global land rush; transnational capital Isaac Khen, 137 Joint Peace Fund, 66, 76 Jolliffe, Kim, 17 Jones, Lee, 87 justice, 11, 28, 38–39, 115, 128

Index  221 Kachin Hill Tribes Act (1895), 30 Kachin In­de­pen­dence Organ­ization (KIO), 18, 74 Kachin State land, 36 Karen Agriculture Department (KAD), 74–75, 157, 160, 165 Karen Environmental and Social Action Network (KESAN), 157–58, 168, 170, 172 Karen Forest Department (KFD), 157 Karen ­Human Rights Group (KHRG), 162, 168, 170–71 Karen National Liberation Army (KNLA), 151–53 Karen National Liberation Army -­Peace Council (KPC), 154, 162, 172 Karen National Union (KNU), 8–9, 18, 27, 74–75, 151–61, 164–68, 172, 174, 177, 179, 191n4 Karenni National ­People’s Party (KNPP), 74 Karen Peace Support Group, 162 Kayin State: the administrative system of, 151–52, 156, 159–60, 163–65; background on the, 8–9, 151; ceasefire, 158–59, 172; and civil society, 16, 161, 164, 168–69, 174; civil war, 151, 153–54, 156, 172, 177; and colonialism, 153; and customary land, 157–58, 160–61, 164; and dual administration, 151–52, 155–56, 158, 160, 165–67, 170, 174; and land confiscation, 152, 162–64, 167–71; and land conflicts, 162–65, 167–68; and land contestation, 8; and LUCs, 159; and po­liti­cal opportunities, 165–68; and pro bono ­lawyers, 171; refugees, 155; and sovereignty, 159, 174 Karen Thwee Community Development Network, 163–64 Karl, Terry L., 11 Kayin ­People’s Party, 155 Khin Nyunt, 69, 188n7 KNU Economic Committee, 165 KNU Forest Policy (2008), 157 KNU Land Policy (2015), 74–76, 156–57, 160–61, 179 Kwe Htoo Win, 160 Kyaukphyu SEZ, 106–7

­labor exploitation, 22 ­Labor Organ­ization Law (2011), 120 Lahpai Seng Raw, 73 Land Acquisition Act (1894), 30, 51–52 land concentration, 31, 114 land concessions, 86–90, 109, 115, 117, 145, 175 land confiscation: and activism, 43, 50–51, 62–63, 169; cases, 27, 51–54, 98, 102, 108; and the law, 34, 40–42; and the military, 3–4, 14, 40, 52, 61, 64, 85–90, 98–104, 104, 114–15, 126, 162, 180; and negotiation, 126–29, 170; and the paddy procurement policy, 31, 114; and protest, 58; and restitution, 2–3, 30, 34, 51, 53–56, 64, 75, 99–102, 103, 117, 132, 167–68, 171; and scholarship, 10; by the state, 31–32, 39–40, 85, 124, 162; and vio­lence, 169–70. See also specific ethnic minority groups Land Confiscation Procedural Act (1932), 51 land contestation, 8, 34–37, 53–54, 56, 61, 92–93, 115 Land Core Group (LCG), 43, 124 land formalization, 31–37, 42, 92–93, 102, 170 Land in Our Hands (LIOH), 124–25, 191n3 land laws (2012), 30, 38, 57, 61–62, 66–67, 75, 108, 144, 146, 150, 160. See also Farmland Law (2012); VFV Land Management Law (2012) landlessness, 35, 115–16, 139–40 Land Nationalization Act (1953), 3, 29–30, 114, 134, 138 land politics. See customary land systems; land confiscation; land contestation; land tenure systems land restitution, 2–3, 13–14, 34, 39. See also reform land tenure systems, 3–4, 10, 28, 32, 73–74, 137, 141–43, 152. See also customary land systems Land Use Allocation and Scrutiny Committee, 57–58 land use certificates (LUCs), 33–37, 54, 102, 112, 158–59, 170 law and order, 37–39

222  Index law enforcement, 29, 37. See also rule of law law of status society, 38, 51, 62, 173 Leckie, Scott, 29 ­legal frameworks, 28–29, 33, 42, 61, 108–9, 132 ­legal pluralism, 28–29, 74 legitimacy, 9, 11–12, 14–15, 17, 20, 46, 48, 59. See also hegemony; power Lehman, Frederic K., 135 Letpadaung copper mine, 84–85, 95, 104, 173, 181 liberalization, 23 Lintner, Bertil, 184 Lo Hsing Han, 88 Loka Ahlinn, 45, 48–49, 119 Lower Burma Land and Revenue Act (1876), 29–30, 74, 113 Mahn Mahn, 75 Maithin Yumon, 149 Makury, Athong, 77 Maung Aung Myoe, 88, 100 Maung Gyi, 38, 44–45 Max Myanmar Group of Companies, 98 media, 45, 64, 93, 105, 125, 169 Mekong Region Land Governance, 80 military. See coup d’etat; h ­ uman rights; land concessions; land confiscation; Ministry of Defence; Myanmar Economic Corporation (MEC); reform; specific military leaders Min Aung Hlaing, 100, 182–85 Ministerial Burma, 68, 136, 153, 192n5, 198n2 Ministry of Commerce, 105 Ministry of Defence, 86–88, 101 Ministry of Electricity and Energy, 165 Ministry of Electric Power, 94 Ministry of Environmental Conservation and Forestry (MOECAF), 57, 59–61 Ministry of Home Affairs, 39, 69 Ministry of Union Government Office, 51, 189n25 Min Ko Naing, 50 Mitchell, Derek J., 97 monarchy, 44–45 moneylending, 27, 113–14

Mong Ton Dam, 89 moral economy, 139–42 Morton, Adam D., 22–23, 91 Mwe Taung nickel mine, 142 Myanmar (background on), 32–33 Myanmar (map of), 6 Myanmar Alliance for Transparency and Accountability (MATA), 84 Myanmar Center for Responsible Business (MCRB), 84, 93, 108 Myanmar Development Resource Institute (MDRI), 23, 95 Myanmar Economic Corporation (MEC), 32, 86, 88, 100 Myanmar Investment Commission (MIC), 108 Myanmar Investment Law (2016), 96, 195n38 Myanmar Peace Center, 70, 87, 104 Myitsone Dam, 94–95, 104, 107 Nakanishi, Yoshihiro, 46, 69, 86 Namati, 55, 128–29 Nan Say Wah, 171 National Action Plan for Agriculture (2015), 120 National Defense and Security Council, 2 National Demo­cratic Front, 109 National Economic Social Advisory Council, 43 National Land Use Policy (NLUP, 2016), 8, 17, 43–44, 56–64, 77, 82, 144, 146, 150, 173 National League for Democracy (NLD), 3, 50, 56, 70–72, 97, 104, 106, 116, 128–29, 132, 178, 181–82 National Unity Consultive Council (NUCC), 185 National Unity Government (NUG), 184–85 nationhood, 20, 67, 80 Nations and Nationalism (Gellner), 19 Nationwide Ceasefire Agreement (NCA, 2015), 2, 20, 66–67, 71–77, 82, 148, 150, 154, 166–67, 174. See also ceasefires The New Imperialism (Harvey), 21 Ne Win, 17, 30, 46, 68–69, 82, 88, 114, 138, 153, 187n2

Index  223 New Light of Myanmar, 45 New Mon State Party (NMSP), 74, 154 nongovernmental organ­izations (NGOs), 7, 39, 55, 59, 62, 64, 116–17, 121–24 No Than Khap, 198n23 Nyan Tun, 53 Obama, Barack H., 1 O’Donnell, Guillermo, 10 Okamoto, Ikuko, 115 Opposing the Rule of Law (Cheesman), 37–38 Organisation for Economic Co-­operation and Development (OECD), 85, 92 Ostrom, Elinor, 77 “Our Customary Lands” (ECDF), 78–79

poverty, 11–12, 22, 32, 95, 116, 134, 184, 189n20 power: and the courts, 39; and the economic elites, 9, 11–12, 28; and the global land rush, 3; and smallholder farms, 119–20. See also legitimacy Prasse-­Freeman, Elliot, 22, 38, 62, 188n16 private property land market, 91 progressivism, 8–9, 12, 24, 28, 112, 116, 126, 175, 177–78. See also civil society; grassroots mobilization; reform; social movements protest. See social movements Pun, Serge, 97 Pwint Thit Sa survey (2014), 93 Pyo Khin Thit, 123–24

pacts, 7–8, 12–16, 23, 59–61, 173, 177–78, 188n12. See also democ­ratization paddy procurement policy, 31, 35–36, 114, 118, 132 palm oil, 21, 89–90 Panglong Agreement (1947), 18, 68, 71, 80, 134, 136 Parliamentary Land Investigation Commission (PLIC, 2012), 44, 51–55, 64, 100–102, 115–16, 178, 190n18 Paul Sein Taw, 170 Paung Ku, 116, 121, 124, 126–27 peace. See ceasefires Peaceful Demonstrations Law (2012), 130 Peluso, Nancy L., 119–20 Penal Code, 108, 130 ­People’s Defense Forces (PDFs), 182–83 Phyo Win Latt, 22 Pierce, Caitlin J., 55 Ploung-­Sgaw Demo­cratic Party, 155 Po Chit, 153 Policy Unit of the Environmental Conservation Department, 96 po­liti­cal activism, 17, 49–51, 57, 63, 119. See also activism; social movements po­liti­cal gray zone, 11 po­liti­cal opportunities, 15–16 po­liti­cal society, 12–13. See also civil society Poulantzas, Nicos, 12

reform: agrarian, 11, 13, 21–22, 33–37, 40, 56; and civil society, 24, 59–61; constitutional, 2; and democ­ratization, 7, 11; domestic, 2; economic, 23, 46, 94–109; land management, 33, 131–32; land tenure, 3, 28, 32; legislative, 28, 67, 73, 76, 80, 147, 175; and legitimacy, 9, 14–15, 17, 20, 42, 46, 48, 63, 90, 111, 116; and pacts, 7–8; progressive, 28, 44, 64, 112, 116, 175, 177–78; re­sis­tance to, 108–09; and the state, 14, 16, 23–24, 41, 44, 60–61, 63, 72, 85–86, 90–91, 108, 131–33, 177, 180. See also grassroots mobilization; land restitution; progressivism; social movements regulations, 23, 84–85, 90–97, 104–10, 175. See also environmental impact assessment (EIA) reparations. See land restitution Research Institute for Society and Ecol­ogy, 164 Restoration Council of Shan State (RCSS), 89 Ribot, Jesse C., 119–20 rice, 29, 31, 46, 89, 112–13, 115, 119 road map to democracy, 1. See also democ­ratization Rohingya, 1, 19–20, 65, 72, 107, 181–83 Roquas, Esther, 28 rubber, 21, 90

224  Index rule of law, 37–39, 44, 107–8. See also law enforcement rural movements. See social movements rural populations, 11–12 Rutten, Rosanne, 119–20 Sabatier, Paul A., 133 Saffron Revolution (2007), 14, 47–48 Sai Nyunt Lwin, 76 Sakhong, Lian, 135–36, 148 sanctions, 1–2, 32, 46, 85–86, 89, 91–92, 97–98, 183 sangha, 47–48 San Thein, 51, 90 Sao Shwe Thaik, 68 Saw Maung, 69, 187n2 Saya San Rebellion, 119 Sayer, Andrew, 4–5 Scheduled Areas, 30, 134, 192n5, 198n2. See also Frontier Areas Schmitter, Philippe C., 10 scholarship, 4–5, 7, 9–10, 178–79 Scott, James C., 139 Settlement and Land Rec­ords Department (SLRD), 3, 30–33, 37, 54, 57, 60–61, 77, 112, 128, 143–44, 188n9 Shan National League for Democracy (SNLD), 34 Share Mercy, 117, 130 Shwe Mann, 13–15, 55, 118 Shwe Thein, 58–59 Simperingham, Ezekiel, 29 Sky ­Legal Network, 171 Slater, Dan, 188n12 smallholder farmers, 119–20. See also agriculture Smith, Anthony D., 19 Smith, Martin, 18 social impact assessment (SIA), 106–7 socialism, 31, 68–69, 87 social movements, 4, 15–17, 62–64, 85, 111, 116, 125–26, 133, 178. See also activism; grassroots mobilization; po­liti­cal activism; progressivism; reform South, Ashley, 19, 122, 154, 166

sovereignty, 17–19, 39–40, 80, 159, 174, 176, 185 squatters, 40–41, 163 stacked laws, 28–30, 42, 126, 173 state-­in-­society, 16–17 State Law and Order Restoration Council (SLORC), 1, 13, 31–32, 69, 86–87, 89, 187n2 state-­mediated capitalism, 87 state-­owned enterprises (SOEs), 104–5, 107, 110, 175 State Peace and Development Council (SPDC), 69, 90, 119, 187n2 Steinberg, David I., 20 Stevenson, Henry N.C., 139 Studwell, Joe, 3 Sui Khar, 81, 149 taingyintha, 18–19, 65, 80–82, 176, 193n34 Tarrow, Sidney G., 15, 111, 116 Tatmadaw. See coup d’etat; h ­ uman rights; land concessions; land confiscation; Ministry of Defence; Myanmar Economic Corporation (MEC); paddy procurement policy; reform; Union of Myanmar Economic Holdings ­Limited (UMEHL); specific military leaders taxation, 29–30, 99–100, 112 Taylor, Robert H., 18 Technical Advisory Group (Scrutiny Committee), 57–58 technocrats, 23, 57, 91 Thailand, 37, 85, 87 Thai Neighboring Countries Economic Development Cooperation Agency (NEDA), 163 Than Shwe, 69, 86, 187n2 Thawnghmung, Ardeth M., 155 Thein Sein (the government of), 2, 17, 21–23, 41, 48–49, 55–59, 64–65, 71–72, 94–95, 109, 116, 129–30 Theravada Buddhism, 45 Thilawa Special Economic Zone (SEZ) Committee, 100, 107 Thin Naing Thein, 43 Thompson, Edward P., 139

Index  225 Thoo Lei Com­pany Ltd., 165 Thra Tha Hto, 153 Tilly, Charles, 15 Tin Htut, 53, 55 Tin Lin Aung, 117 transnational capital, 22, 85–97, 100, 180. See also China; global land rush; investment; Thailand U Myint, 95 Union of Myanmar Economic Holdings ­Limited (UMEHL), 32, 86–88, 99–100, 180–81 Union of Myanmar Federation of Chambers of Commerce and Industry (UMFCCI), 92, 161 Union Peace Conference, 76, 167 Union Peace Dialogue Joint Committee, 72 Union Revolutionary Council, 68–69, 187n2 Union Solidarity and Development Party (USDP), 3, 49, 70, 116–18 United League of Arakan (ULA), 185 United Nations Declaration on the Rights of Indigenous P ­ eoples (UNDRIP), 80–82, 146 United Nations Development Program (UNDP), 106 United Nations Global Compact Network Myanmar, 161

United Wa State Party (UWSP), 18, 185 Unlawful Associations Act, 169 U Nu, 68, 153 Upland Farm Mechanization Proj­ect (2002), 143 urbanization, 33 VFV Land Management Law (2012), 32–36, 41–42, 56–58, 90, 108–9, 135, 143–45, 160, 163 Vumson, Suantak, 135 Wai Lwin, 100–102 Walton, Matthew J., 45, 47 Wan Bao Com­pany, 104 Wasteland Instructions (1991), 13, 22, 31, 87, 89, 114 White, Ben, 21 Win Myint, 182 Woods, Kevin, 32 World Bank, 23, 90 Xi, Jinping, 104, 107 Yashar, Deborah J., 18 Yoma Strategic Holdings Ltd., 97 Young Men’s Buddhist Association, 48 Yuzana Com­pany Ltd., 89, 109

About the Author

SiuSue Mark is a po­liti­cal economist and policy practitioner with two de­cades of global professional experience. She specializes in Myanmar, where she lived from 2008 to early 2019, and where she lectured at the University of Yangon and was the land and natu­ral resources advisor to the Joint Peace Fund, a multi-­ donor fund set up to support the country’s peace pro­cess. From 2017 to 2021, she was a con­sul­tant to vari­ous international development agencies, such as the World Bank and the Food and Agriculture Organ­ization, in the governance of land and natu­ral resources in transition and post-­conflict settings. In this regard, she uses po­liti­cal economy analy­sis to understand how the politics of control over land and natu­ral resources contribute to and reflect the forces that shape state building, state-­society relationships, sustainable development, ­human security, and ­human rights. She has published extensively in Land Use Policy, Environment and Planning, Journal of Con­temporary Asia, Critical Asian Studies, Journal of Current Southeast Asian Affairs, and In­de­pen­dent Journal of Burmese Scholarship, as well as in the Washington Post and Asia Times. Sue received her master’s degree from Columbia University and a doctoral degree from the International Institute of Social Studies in The Hague, Netherlands. She is also a Salzburg Global Seminar fellow.