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Improving Access to Justice Through Community Based Dispute Resolution (Cbdr) for Housing, Land and Property Disputes in Myanmar

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Improving Access to Justice Through Community Based Dispute Resolution (Cbdr) for Housing, Land and Property Disputes in Myanmar IMPROVING ACCESS TO JUSTICE THROUGH COMMUNITY BASED DISPUTE RESOLUTION (CBDR) FOR HOUSING, LAND AND PROPERTY DISPUTES IN MYANMAR HOUSING, LAND AND PROPERTY RIGHTS LEGAL AWARENESS INFORMATION MATERIAL October 2018 In partnership with: IMPROVING ACCESS TO JUSTICE THROUGH COMMUNITY BASED DISPUTE RESOLUTION (CBDR) FOR HOUSING, LAND AND PROPERTY DISPUTES IN MYANMAR HOUSING, LAND AND PROPERTY RIGHTS LEGAL AWARENESS INFORMATION MATERIAL October 2018 4 TABLE OF CONTENTS I. Housing, Land and Property (HLP) rights internationally and in Myanmar. 6 I.1. What are HLP Rights? 6 I.2. Are HLP Rights found in International Law? 7 I.3. Does Myanmar national law also recognise HLP rights? 7 I.4. What are the land laws, rights of use and practices in Myanmar? 8 II. How do HLP rights work in practice in Myanmar? 9 II.1. How do I access HLP rights in practice? 9 II.2. What are the different types of land in Myanmar? 9 II.3. How do I register my land? 10 a) Farmland 10 a) Vacant, Fallow and Virgin Land 11 b) Forest Land 11 c) Town and Village Land 12 d) Town and Village Housing 12 II.4. What if I face problems trying to register my land? 12 II.5. I want to register my land, but I do not have the money to do so. What should I do? 12 II.6. How can I protect myself from “land grabbings” (illegal taking of land without a clear, fair legal process). 13 II.7. How can I obtain compensation in case of an expropriation? 13 a) Government Departments or Military Confiscation 13 b) Companies. 14 II.8. My land is already taken and is being used by someone or a company illegally. How do I get the land back? 15 II.9. The villagers wrote several complaint letters to authorities to stop confiscation of their land, but they did not get any reply. What options are available to the complainants? 15 II.10. How do I reclaim my land being occupied by the Tatmadaw for a military base or barracks? 15 II.11. I bought land 30 years ago, but a religious organization is now claiming that the land belongs to them. What can I do to protect my rights? 15 5 III. Can I have my customary land rights recognised? 16 IV. Transferring HLP rights through a sale or inheritance. 17 IV.1. How can I pass on the right to use my land to my children or other family members? 17 IV.2 Can I sell or transfer the use-right of my land to another party, and if so what do I need to do to make the transfer legal? 17 IV.3. I gave my land to a brother to use it, but after some time he sold off the land without my consent/knowledge. How do I get back my land? 17 IV.4. Someone’s land with fruits and a wood plantation was sold off to another person by a village leader. Do village leaders have authority to sell other people’s land? Given the position of village leaders, how do I get justice? 17 IV.5. How can I be assisted to make a strong contract when selling my land to companies and other people? 17 VI. How do I get legal assistance to solve land issues? 18 VI.1. Who can assist me to resolve disputes over land? 18 VII. Women’s HLP rights. 19 VII.1. As a woman, is my situation similar or different for getting formal recognition of my rights? 19 VII.2. Can women register their own land? 19 VII.3. Do women belonging to ethnic minorities have equal rights with men? 19 VIII. HLP rights in conflict-affected areas. 20 VIII.1. If I cannot use my land due to insecurity and/or presence of land mines, that land is considered vacant. How does the law protect my rights? 20 VIII.2. What steps do IDPs need to take to ensure that their land in their place of origin is secure? 20 VIII.3. How do we take measurement of land located in mountainous areas? 20 VIII.4. What steps do IDPs who need to settle elsewhere need to take to acquire land? 20 VIII.5. How do I prove illegal occupation of my land by other people? 20 VIII.6. I wish to register my land, but the land is infested with landmines. How can registration be done to protect my land from being grabbed? 21 VIII.7. I lost all relevant documents to my land during the conflict. How can I replace these documents? 21 6 I. HOUSING, LAND AND PROPERTY (HLP) RIGHTS INTERNATIONALLY AND IN MYANMAR. I.1. What are HLP Rights? As a human being and as a citizen or resident of Myanmar you personally have - under international and national law - a series of human rights. Some of these rights relate to the house where you live and the land that you use. These rights are called housing, land and property rights, or HLP rights. HLP rights are all of the rights in international and national law that in any way affect the rights and circumstances related to housing, land and property. HLP rights include: • The right to adequate housing, • The right to property (use, possession, transfer, control), • The prohibition of discrimination, • The right to a fair trial, • The right to an effective remedy, • The right to housing and property restitution, • The right of displaced persons and refugees to return home. • Customary land rights. Individuals, governments and international organisations around the world have agreed to recognise these rights because they are based on shared universal values, human dignity and our shared humanity. These rights are designed to ensure you have: • a decent place to live in peace and dignity; • a home that is safe, affordable and adequate for your needs; • secure land tenure (the legal right to ownership or use of land) that protects you from the illegal taking of your land, forced eviction and harassment; • legal protections against discrimination and in support of equality of treatment for men and women; and • special protections for vulnerable groups such as children, the elderly, disabled persons, displaced persons and others. When any of these guarantees are not present in your life, your HLP rights are not in place, and that they may have been abused or violated. I.2. Are HLP Rights found in International Law? 7 The government of Myanmar has officially committed itself to respecting these rights. The most well-known international human rights document, the Universal Declaration on Human Rights (UDHR, 1948), applies to every country and includes the first-ever mention in a global document of the ‘right to adequate housing’ in its Article 25(1). The Declaration creates obligations for the government of Myanmar. Additionally, in October 2017, the Myanmar government committed to the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966). Article 11(1) of s and commits all government authorities – at the Union, state and local levels – to comply with its terms. In 1991, the UN Committee on Economic, Social and Cultural Rights adopted ‘General Comment No. 4 on the Right to Adequate Housing’ which interprets Article 11(1) of the ICESCR. It lists the following seven components form the core contents of the human right to adequate housing: (a) legal security of tenure; (b) availability of services, materials, facilities and infrastructure; (c) location; (d) habitability; (e) affordability; (f) accessibility; and (g) cultural adequacy. If you do not have any of these guarantees in place, your right to adequate housing is not yet in place. Everyone in the country, therefore, can legally demand that their HLP rights guaranteed by the UDHR, the ICESCR and other treaties that create additional rights, are fully complied with by all public officials in Myanmar, and that new national laws recognising these are put in place as promised. I.3. Does Myanmar national law also recognise HLP rights? Article 37 of the Constitution establishes that “The Union: (a) is the ultimate owner of all lands and all natural resources above and below the ground, above and beneath the water and in the atmosphere in the Union; (b) shall enact necessary law to supervise extraction and utilization of State-owned natural resources by economic forces; and (c) shall permit citizens right of private property, right of inheritance, right of private initiative and patent in accord with the law.” This does not mean that there are no HLP rights in Myanmar, but rather expresses the ultimate power of the state on land issues (including the ability to expropriate subject to the law and with the provision of adequate compensation). Hence, in addition to Article 37, there are some rights in the Union Constitution that recognize individual HLP rights. These are rights that can be claimed and demanded by everyone in Myanmar, with the government legally required to ensure that all of them are in place: 347. The Union shall guarantee any person to enjoy equal rights before the law and shall equally provide legal protection. 348. The Union shall not discriminate any citizen of the Republic of the Union of Myanmar, based on race, birth, religion, official position, status, culture, sex and wealth. 353. Nothing shall, except in accord with existing laws, be detrimental to the life and personal freedom of any person. 355. Every citizen shall have the right to settle and reside in any place within the Republic of 8 the Union of Myanmar according to law. 356. The Union shall protect according to law movable and immovable properties of every citizen that are lawfully acquired.
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