Business and Human Rights

in ASEAN
A Baseline Study

Competence Centre for Human Rights

MYANMAR

by:
Hnin Wut Yee
 Myanmar - Hnin Wut Yee

BASELINE REPORT: Myanmar (Burma)

SNAPSHOT BOX
Number of Multinational Business 529 Permitted enterprises as of 31/12/2012.1
Enterprises operating in the country
Number of Micro, Small and Medium Small and medium business enterprises in Myanmar in 2008 is
Business Enterprises operating in the 40194 in total2
country
Number of State-owned Enterprises About 33 State Economic Enterprises under the government
and the industries in which they ministries.3
operate
652 industry enterprises owned by government agencies in
2010, operating in food and beverages, clothing, construction
materials, personal goods, household goods, printing and
publishing, industrial raw materials, mineral and petroleum
products, agricultural equipment, machinery and equipment,
transport vehicles, workshops and dockyards, etc.4
More than 90 state-owned businesses were privatized in 2008,
more than 300 in 2009, more than 100 in 2010, and 76 privatized
in 2011.5 One state owned oil refinery to be privatized this year.6

1 Foreign enterprises permitted to invest in Myanmar as of 31/12/2012 by sector: 5 in Power, 113 in Oil and Gas, 67 in Mining,
216 in Manufacturing, 46 in Hotel and Tourism, 19 in Real Estate, 26 in Livestock and Fishers, 16 in Transport and Communication,
3 in Industrial Estate, 9 in Agriculture, 2 in Construction and 7 in Other Services.
Foreign enterprises permitted to invest in Myanmar as of 31/07/2012 by country are 34 from China, 61 from Thailand, 40 from
Hong Kong, 52 from Republic of Korea, 54 from U.K, 76 from Singapore, 43 from Malaysia, 2 from France, 15 from U.S.A, 12 from
Indonesia, 5 from the Netherlands, 25 from Japan, 8 from India, 2 from Philippine, 2 from Russia Federation, 14 from Australia, 2
from Austria, 2 from Panama, 4 from Viet Nam, 1 from United Arab Emirates, 15 from Canada, 2 from Mauritius, 2 from Germany,
2 from Republic of Liberia, 1 from Denmark, 1 from Cyprus, 2 from Macau, 1 from Switzerland, 2 from Bangladesh, 1 from Israel,
1 from Brunei Darussalam, 1 from Sri Lanka.
“Data on Foreign Investment, Local Investment and Company Registration,” Directorate of Investment and Company Administration,
and Minisry of National Planning and Economic Development, accessed Sep 20, 2012, http://www.dica.gov.mm/dicagraph.htm.
2 Dr.Pussadee Polsaram, and Ms Thaw Dar Htwe, “Small & Medium Enterprises Development Policies in Myanmar,” p. 3, accessed
July 10, 2012, http://www.aseansec.org/documents/SME%20Development%20Policies%20in%204%20ASEAN%20Countries%20
-%20Myanmar.pdf
3 State Economic Enterprises: Agricultural Enterprises, Myanmar Timber Enterprises, Myanmar Fisheries Enterprise, Livestock,
Foodstuff and Milk Products Enterprise, Industry 1 and 2, Myanmar Oil and Gas Enterprise, Myanmar Petrochemical Enterprise,
Myanmar Petroleum Products Enterprise, Myanmar Electric Power Enterprise, Off-Shore Project, Public Works, Myanmar Five
Star Line, Inland Water Transport, Myanmar Port Authority, Myanmar Shipyards, Myanmar Airways, Myanmar Railways, Road
Transport, Myanmar Post and Telecommunications, Central Bank of Myanmar, Myanmar Economic Bank, Myanmar Foreign Trade
Bank, Myanmar Agricultural and Rural Development Bank, Myanmar Investment and Commercial Bank, Myanmar Insurance,
Security and Printing Works, Myanmar Small Loan, Trade Enterprises, Information, Social Security Board. Central Statistical
Organization, Ministry of National Planning and Economic Development, The Government of the Republic of the Union of Myanmar:
Statistical Year Book 2010 (Nay Pyi Taw, 2012), pages. 365-366.
4 Central Statistical Organization, Ministry of National Planning and Economic Development, The Government of the Republic of
the Union of Myanmar: Statistical Year Book 2010 (Nay Pyi Taw, 2012), page 163
5 “Privatisation Schemes Fuelling Inflation and Mistrust, Business People Say,” Eleven Myanmar, January 16, 2013, accessed
January 31, 2013, http://elevenmyanmar.com/business/2144-privatisation-schemes-fuelling-inflation-and-mistrust-business-
people-say; “Myanmar to Privatize 76 more State-owned Enterprises,” accessed July 20, 2012, http://www.asean-cn.org/Item/1809.
aspx.
6 “Myanmar to Privatize Oil Refineries,” Eleven Myanmar, July 25, 2012, accessed July 30, 2012, http://elevenmyanmar.com/
business/380-myanmar-to-privatize-oil-refineries.

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SOEs will be sold off within 10 years and within 5 years, there will
be fewer SOEs.7
Out of 33 Sate Economic Enterprises, under the Ministry of
Transport, 4 enterprises including Inland Water Transport,
Myanmar Port Authority, Shipyards, and Airways are to be
privatized within (2012-13) fiscal year(April-March).8 Myanmar
Posts and Telecommunications (MPT), one of State Economic
Enterprises will be turned into an independent corporation this
year.9
Flow of Foreign Direct Investment from US $ 714.9 Million (2007-08)
2008 to 2012 (or other recent 3 to 5
US $ 975.6 Million (2008-09)
year range)
US $ 963.3 Million (2009-2010)
While FDI inflow is stated at US $ 20 billion for the fiscal year
2010-11 by UNESCAP, referring to the Ministry of Commerce
of Myanmar,10 the actual FDI flow was $756 million for 2011
according to UNCTAD.11
According to the Myanmar Investment Commission, Myanmar
received US$794 from April 1 to December 31 2011.12
Main industries in the country Agricultural and related manufacturing firms in Food and
Beverages13; oil and gas, mineral and petroleum products,
Clothing and wearing apparel, wood and wood products,
Construction materials, Pharmaceutical, Personal and Household
Goods, Industrial raw materials; Livestock and Fisheries; Hotel
and Tourism

7 Win Ko Ko Latt, “State-owned Firms to be Sold Off Within 10 years: Government,” Myanmar Times, September 5-11,2011,
accessed July 10, 2012, http://www.mmtimes.com/2011/business/591/biz59106.html.
8 “Myanmar to Privatize 4 State Enterprises,” Xinhua, February 6, 2012, accessed July 10, 2012, http://www.asean-cn.org/
Item/4507.aspx.
9 “Telecom Agency Set To Become Independent Corporation,” Eleven Myanmar, January 31, accessed February 1, 2013, www.
elevenmyanmar.com/business/2301-telecom-agency-set-to-become-indepedent-corporation.
10 UNESCAP, “Myanmar: Opening Up To Its Trade And Foreign Direct Investment Potential,” (Trade and Investment Division,
Staff Working Paper 01/12, September 20, 2012, revised December 31, 2012), p. 5.
11 UNCTAD, “ World Investment Report 2012: Towards A New Generation of Investment Policies,” 2012, pg.204. See also Jared
Bissinger, “Behind Burma’s Rising FDI,” The Diplomat, August31, 2011, accessed October 30, 2012, http://thediplomat.com/asean-
beat/2011/08/31/behind-burmas-rising-fdi/
12 Kyin Myo Thwe, “Myanmar Foreign Investment almost $800m in 9 months,” Mizzima, February 11, 2012, accessed February
12, 2012, www.mizzima.com/business/8887-myanmar-foreign-investment-almost-800m-in-9-months.htm.
13 Food and Beverages amount 65.36% of SMEs in 2008, clothing and wearing apparel, 4.49% (See Dr. Pussadee Polsaram, and
Ms Thaw Dar Htwe, “Small & Medium Enterprises Development Policies in Myanmar).

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Number of cases involving business- According to the ALRC citing a local news, the majority of over
related human rights violations 1700 complaints received by the Myanmar National Human Rights
reported to (i) NHRIs, (ii) other national Commission (MNHRC) in the first six months of its operations
human rights bodies (e.g. ombudsmen) concerned land grabbing cases reportedly committed by army-
, and/or (iii) international human rights owned companies, joint ventures and other economically and
bodies politically powerful operations with connections to the military.14
As of September 2012, according to U Win Mra, Chairman of
MNHRC, ‘around 30 complaint letters come daily to Myanmar
National Human Rights Commission and most are related to
farmland problems.”15
Have the Framework and/or the A local NGO called Spectrum operating in Myanmar is translating
Guiding Principles been translated into the Guiding principles, overall framework, implementation
the country’s languages and published guidelines, and principles of responsible contracting. They are
in the country? also drafting summary guides on the UN framework appropriate
for short guidance notes and for broad scale distribution.16

14 The Asian Legal Resource Center (ALRC), “Myanmar at Risk of Land-Grabbing Epidemic,” June 6, 2012, accessed July 20, 2012,
http://www.alrc.net/doc/mainfile.php/hrc20/717/.
15 “Human Rights Commission Receives Lots of Complaints Daily,” Weekly Eleven, September 14, 2012, accessed Oct 30, 2012,
http://elevenmyanmar.com/politics/692-human-rights-commission-receives-lots-of-complaints-daily
16 Data from Email Communication with David Allen, Director of the Spectrum
17 The1988 Foreign Investment Law was replaced by The Foreign Investment Law, The Pyidaungsu Hluttaw Law No.21/2012, The
3rd Waning of Thadingyut, 1374 M.E. 2nd November, 2012. See more detail for the procedural regulation for establishing a business
presence for foreign investors in Chapter 3 of the FDI regulations, the Republic of the Union of Myanmar, Ministry of National
Planning and Economic Development, Notification No. 11/2013, The 5th Waning day of PyarTho 1374, M.E.(31st January, 2013). The
main framework of the procedures is the same with the 1988 FDI Law such as obtaining a permit issued by the Myanmar Investment
Commission (MIC) and a permit for registering the company by the Directorate of the Investment and Company Administration
(DICA) (See also UNESCAP, “Myanmar: Opening Up To Its Trade And Foreign Direct Investment Potential.”)

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Types of Business Enterprises in the Country

Name of Description of the Legal Does incorporation of Any legislation

the Type structure of the Type of Business the business enterprise specifically
of Business Enterprise require any recognition applicable to the
Enterprise of a duty to society, Type of Business
including human rights Enterprise
E.g. company, responsibility?
partnership, (E.g.
business trust Corporations
etc. Law)
Sole A sole proprietorship is a business
Proprietorship owned by an individual which
usually operates under the name
of the owner. Establishment
and operation is simple. It is
not required to register. Capital
formation and withdrawal can
be performed at one’s will.
However, the proprietor’s liability
is unlimited.
Partnerships A group of individuals may enter The Partnership
into partnerships in order to carry Act(1932)
on a business. The partnership’s
rights and obligation are based
on theagreements between the
partners and the Partnership Act
of 1932. In accordance with the
Act, the number of partnerships
is limited to twenty. A partnership
firm may be registered, but
registration is not compulsory. All
partnerships formed in Myanmar
are of unlimited type as the
Partnership Act does not permit
a limited partnership. When no
provision is made for the period
of time, the partnership will be
dissolved when all partners are
willing to do so.

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Companies In a Private Limited Liability Although Company law The Myanmar

Limited by Company, the transfer of shares 1914 has no provision Companies
shares is restricted, the public cannot requiring the business Act 1914 for
be called upon to subscribe enterprise to recognize the limited
for shares, and the number of a duty to society, the companies,
members is limited to fifty. new Foreign Investment Myanmar
Law 2012 and its Companies Rules
In a Public Limited Liability regulations have some 1940, Myanmar
Company, the number of provisions on social Companies
shareholders must be at least impact assessment Regulations 1957
seven. The company, after (SIA) and environmental
registration, must apply for a impact assessment (EIA)
Certificate of Commencement of requirements to apply
Business to enable to start the for investment permit The Special
business operation. from the Myanmar Company
Investment Commission Act 1950 for
Joint Venture Company Limited a company
(MIC) specifically for
formed under the foreign with share
big projects with large
investment law 201217 (Joint contribution of
amount of investment
Venture between the foreigner the State
and projects required
and local investors registered
to do EIA and SIA
under the Myanmar Company Act
according to the
1914; between Foreign Company
rules of the Ministry
and State Owned Economic
of Environmental
Enterprises and registered under
Conservation and
the Special Company Act 1950.
Forestry (article 33 of
Joint Venture Company Limited: FDI regulations)
Joint Venture between State
Owned Economic Enterprises and
Private Entrepreneurs registered
under the Special Company Act
1950
Associations not
for Profit

Sources: Central Statistical Organization, Statistical YearBook 201018.

18 National Planning and Economic Development, “Business Organization,” accessed August 10, 2012, http://www.dica.gov.mm/
Citizen%27s.htm.

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OVERVIEW OF MYANMAR’S BUSINESS The former military regime has moved away from a
AND HUMAN RIGHTS LANDSCAPE socialist system to a so called market oriented system
since 1990s. Until recently the economic system of
The business and human rights landscape of the country informally operated under the control
Myanmar becomes visible in the forms of labour of the ruling military elites and their allies, with a
protests, demanding justice for victims of land set of “rules of the game” favouring rather narrow
confiscation and concern for environmental interests.21 Until 2010, according to the assessment
damage directly linked with business operations of Sean Turnell, an economist with a special focus
especially in extractive industries. Until recently on Myanmar, Myanmar’s economy was unbalanced
when the quasi-civilian government has started and volatile without the institutions and qualities
to take substantial steps that led to some political required for sustainable economic growth and
and economic reform measures, Myanmar has development in addition to rampant corruption.22
been criticized and sanctioned for its human In fact, the economy had been sluggish over the past
rights records for decades.19 Critics have noted that decades, a situation which according to the ADB
political instability, economic mismanagement of was attributable to factors such as ‘low investment,
the former regime and the resulting poverty serve limited integration with global markets, dominance
as main driving forces behind the nexus of business of state-owned enterprises in key productive
activities and human rights violations such as forced sectors of the economy, and frequent episodes of
migration, exploitation and trafficking.20 macroeconomic instability’.23
19 See more reports on the concluding observations of the
CRC and CEDAW committees for more human rights concern In addition to the poor economic situation, the low
and also reports of human rights organizations such as Human public investment in health, education and social
Rights Watch (HRW) and the Earth Rights International (ERI). services has led to very low human development
Some references: Convention on the Rights of the Child (CRC),
“Consideration of the reports submitted by States Parties under since 1980. According to the UNDP, Human
44 of the Convention: Third and Fourth Periodic Reports of States Development Index (HDI) of Myanmar was very
Parties due in 2008: Myanmar,” CRC/C/MMR/3-4, 17 May, 2011. low at 0.3 and even though it has slightly increased
Committee on the Rights of the Child (CRC), “Consideration
of Reports Submitted by States Parties under Article 44 of the
since 2000, it is still below the average of the East
Convention: Concluding Observations: Union of Myanmar,” Asia and the Pacific.24 In 2011, Myanmar’s HDI was
CRC/C/MMR/CO/3-4, 3 February, 2012. Committee on the 0.483 at a rank of 149 out of 187 countries.25 As
Elimination of Discrimination against Women (CEDAW), of 2010, around 25% of the population was living
“Concluding Observations of the Committee on the Elimination
of Discrimination against Women: Myanmar,” CEDAW/C/ below the national poverty line that was MMK
MMR/CO/3. 7 November, 2008; Human Rights Watch (HRW), 376’151 (Around US $ 437 at an exchange rate of US
“The Recruitment and Use of Child Soldiers in Burma.”
2007, accessed December 30, 2011. http://www.hrw.org/en/
reports/2007/10/30/sold-be-soldiers; Earth Rights International
(ERI), “The Burma-China Pipelines: Human Rights Violations, 21 Sean. Turnell, “Burma’s Economy 2010: A Fresh Look at
Applicable Law, and Revenue Secrecy.” 2011, ccessed January Some Elemental Issues,” September, 2010.
10, 2012. http://www.earthrights.org/sites/default/files/ 22 Ibid.
documents/the-burma-china-pipelines.pdf. 23 ADB, “Myanmar in Transition,” 3-4.
20 CRFB, “CRC Shadow Report Burma.”; Elaine. Pearson 24 Human Development Index (HDI) was introduced “as an
et.al., “The Mekong Challenge: Underpaid, Overworked alternative to conventional measures of national development,
and Overlooked: The Realities of Young Migrant Workers in such as level of income and the rate of economic growth. The
Thailand,” ILO, 2006, accessed December 30, 2011, www.ilo. HDI represents a push for a broader definition of well-being
org/public/english/region/.../underpaid-eng-volume1.pdf; and provides a composite measure of three basic dimensions of
U.S. Department of State, “Trafficking in Persons Report 2011: human development: health, education and income.” “Human
Burma.”; International Council on Social Welfare (ICSW), Development Index (HDI),” UNDP, accessed Sep 20, 2012, www.
“Trafficking and Related Labour Exploitation in the ASEAN hdr.undp.org/en/statistics/hdi.
region,” November 2007; CRFB, “CRC Shadow Report Burma.”; 25 UNDP, “Human Development Report 2011: Sustainablity
PWO, “Stolen Lives.”; KWAT, “Eastward Bound.” and Equity: A Better Future for All,” 2011.

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$ 1= MMK 860) per adult per year.26 While poverty allowances.28 In other words, their income was far
serves as the root cause for human rights violations below the national poverty line of 376151 kyats per
such as various forms of labour exploitation, the adult per year or 1000 kyat per day in 2010.29
lack of adequate laws, policies and protection
mechanisms exacerbated the situation. Similarly, at the Hi Mo High Art Wig factory,
workers went on l strike for the second time in late
Labour issues have been one of the main human May following the company owners’ refusal to pay
rights concerns directly related to business practices the wage increases which had been agreed after
apart from land confiscation and environmental the protests in early May.30 After the strikes, the
damages as highlighted in the following section. minimum salary for workers in industrial zones was
While reform-friendly governmental personnel temporarily set at 56,770 kyats (around US$66)31
and members of parliament are trying to respond to including overtime payment, as suggested by the
these issues by drafting and enacting new laws and Union Chamber of Commerce.32 The current state
regulations, obstacles and challenges still lie ahead. of the law on the minimum wage in Myanmar is
At the same time, it is the most crucial time for the Minimum Wages Act of 1949 that is outdated
the country to tackle these challenges and prevent and not in accordance with the changing economic
business related human rights abuses. reality of the country. Recently the new minimum
wage law has been drafted by the Ministry of
Labour, Employment and Social Security. It has yet
Issues of business related human rights concerns to be discussed at the Parliament.
1) Labour Rights In spite of the temporary agreement of the
minimum salary, the breach of the agreement
Labour Exploitation
by some employers at some factories has led to
Between 1 May to 30 June 2012, workers staged workers’ protests over low salaries again at some
strikes against extremely low salaries at 90 factories factories later in 2012. Other reasons for protests
including garment, purified water, foot wear, include poor working conditions and the fact that
plastic, laces, chemical fertilizer, furniture, electrical many employers disapprove the formation of labour
apparatus, wig, liquor, snacks, construction and unions and as a consequence dismissed employees
petroleum products in the industrial zones in
Yangon.27 For instance, workers from Crown Steel
factory, a Chinese-owned steel factory in Hmawbi in 28 “Myanmar Steel Workers Go Hunger Strike,” 25 May
Yangon Region, went on hunger strike to get 40,000 2012, accessed August 3, http://www.thaivisa.com/forum/
kyat ($48) per month as their basic salary. Their topic/557906-myanmar-steel-workers-go-on-hunger-strike/
basic earning was 160 kyat (less than US $0.20) a 29 IHLCA Project Technical Unit, “Integrated Household
Living Conditions Survey in Myanmar.”
day and ranging from 4,500 to 10,000 kyat ($5.35 to 30 Nyein Nyein, “Factory Workers End Strike.” The Irrawaddy,
$12) a month including overtime pay and various June 6, 2012, accessed August 3, 2012, http://www.irrawaddy.
org/archives/5996.
31 Exchange rate 1 US$ = MMK 860
26 IHLCA Project Technical Unit, “Integrated Household 32 Ma Moe Wai, labour activist told that workers’ minimum
Living Conditions Survey in Myanmar (2009-2010): Poverty salary is around MMK 30,000 excluding overtime payment
Profile,” UNDP Myanmar, June, 2011, accessed http://www. during an informal talk with Ma Moe Wai, Labour Activist on 23,
mm.undp.org/ihlca/01_Poverty_Profile/index.html. (Around Sep, 2012. Current earning of most of the workers in industrial
US $ 437 at an exchange rate of US $ 1= MMK 860) zones at around 30,000 kyats (around US $ 34) per month is the
27 More detail in “Labour Dispute Settlement,” Ministry of lowest salary in ASEAN region. “Local Business Owners will
Labour, Employment and Social Welfare, accessed Sep 29, 2012, Find Difficulty to Find Workers if Minimum Wage Cannot Be
www.mol.gov.mm/mm/departments/department-of-labour/ Defined Before AFTA,” The Yangon Times, Vol 8, No.28, Aug 1,
dol-regional-and-coordination-division/all-list/. 2012.(Burmese)

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who took the lead in such organisations.33 With road building projects as wage earners.40
the enactment of the labour organization law,
the formation of labour unions is now legally
Forced Labour Issues
permitted.34
Following progress in the attempt of the new
government in eliminating forced labour including
Child Labour
signing a Memorandum of Understanding with the
A recent study conducted by the UNDP and the ILO and developing a joint strategy to eliminate
government found that child labour participation forced labour by 2015, the ILO has lifted some of
rate (aged 10-14) among the poor is 18%35 and school the “restrictions” it had imposed on Myanmar
enrolment rate for those poor working children is in 1999 and 2000.41 Forced labour is prohibited
very low at 11.6%.36 Child labour can be seen in under the law amending the 2012 Ward and Village
various sectors, such as food-processing, street- Administration Act.42
vending, refuse collection, light-manufacturing
industries, restaurants, teashops, family agricultural Although the ILO still received 158 forced labour
activities, and large-scale development projects in complaints between June 1 and October 11, 2012
the extractive and energy industries.37 Children in compared with 148 in the same period in 2011.
vulnerable situations such as homeless children, According to the ILO the actual incidence of the
street children, children affected by armed conflicts use of forced labour is declining with an increasing
or disasters have a high risk of being exploited. awareness of communities to lodge complaints with
They are reportedly subjected to dangerous and the ILO.43 During 2011, alleged records of forced
hazardous working conditions with low wages labour relating to business activities included forced
and working the same hours as adults, with the farming with local authorities threatening workers
absence of systematic labour inspections.38 For with fines, loss of farm land and imprisonment.
instance, according the Human Rights Foundation Force labour benefitted mostly the military,
of Monland, child labour abuse cases were found defence-owned commercial interests, and large
near Thai-invested Dawei economic zone in 2011.39 private corporations.44
There were cases of children reportedly working on
40 Ibid.
33 “More Protests Against Low Salaries, Unfair Dismissal,” 41 ILO, “Resolution concerning the measures on the Subject
Eleven Myanmar, November 2, 2012, accessed Dec 30, 2012, of Myanmar Adopted under Article 33 of the ILO Constitution,”
http://elevenmyanmar.com/national/1149-more-protests- 101st session, Geneva, May-June 2012.
against-low-salaries-unfair-dismissal. 42 Punishment is not more than one year imprisonment or
34 The Labour Organization Law, The Pyidaungsu Hluttaw not more than MMK 100,000 or both. See Law amending Ward
Law No.7/2011, The 14th Waxing day of Thadinkyut 1373, M.E. or Village Administration Act, The Pyidaungsu Hluttaw Law
(11th October, 2011). No.7/2012, The 6th Waxing day of Tagu 1373, M.E. (8th March,
35 IHLCA Project Technical Unit, “Integrated Household 2012).
Living Conditions Survey in Myanmar, p. 51. 43 “Myanmar Acting to Cut Forced Labour: ILO,” AFP,
36 Ibid. November 12, 2012. http://www.google.com/hostednews/afp/
37 “2012 Concluding Observations of the CRC Committee,” at article/AleqM5iCyVyNYRoNc7Z1Lx65ZFiYQNGi2g?docld=C
para.69; WCRP cited in CRFB, “CRC Shadow Report Burma,” p. NG.5091d95ca15cd3fd981dde37c5a8a02d.1b1.
3; U.S Department of State, “Trafficking in Persons Report 2011: 44 UN General Assembly, “Report of the Special Rapporteur
Burma.” on the Situation of Human Rights in Myanmar,” A/66/365. 16
38 CRFB, “CRC Shadow Report Burma,” p. 23-24. “2012 September 2011, paras. 64-66, 68-69; Human Rights Council,
Concluding Observations of the CRC Committee,” para. 69. “Progress Report of the Special Rapporteur on the Situation
39 Kyaw Kha, “Report Documents Child Abuse Cases Near of Human Rights in Myanmar, Tomás Ojea Quintana*,” A/
Dawei Economic Zone,” Mizzima, January 17, 2012, accessed HRC/19/67. 7 March 2012, paras.53-56; U.S Department
July 10, 2012, www.mizzima.com/news/inside-burma/6428- of States, “Trafficking in Persons Report 2011: Burma.” ; U.S
report-documents-child-abuse-case-near-dawei-economic- Department of States, “Trafficking in Persons Report 2012:
zone.html. Burma.”

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Table 1: Major Laws Relating to Labour Rights Issues

Laws under
Recently
Issue review or Law Repealed Existing Laws
enacted laws
drafting45
Labour The Labour Minimum Wage Act The Trade Constitution 20082
Rights in Organization Law, (Draft Issued) Unions Act,
Factories Act, 1951
general The Pyidaungsu 1926
Hluttaw Law Employment and Shops and Establishments
No.7/2011, The Skill Development The Trade Act (1951)
14th Waxing day of Act(Draft Issued) Disputes Act,
1929 Leave and Holidays Act
Thadinkyut 1373,
Leave and Holidays 1951
M.E. (11th October,
Act, 1951 The Social
2011) Payment of Wages Act 1936.
Security Act,
Wokmen’s 1954 Employment and Training
The Settlement of
Compensation Act Act, 1950
Labour Dispute Law,
(1923)
The Pyidaungsu Employment Statistics Act,
Hltuttaw Law No. Disability 1948
5/2012), The 6th Employment Act of
Waxing day of Tagu Oil fields Labour and Welfare
1958
1373, M.E. (28th Act, 1951
March, 2012) The Occupational The Rangoon Foreshore
and Skill Labour Employment Control
The Social Development Draft
Security Law, The Order, 1958
Law
Pyidaungsu Hluttaw The Regulation Protecting
Law No.15/2012, the Inland Freight Handlers,
The 14th Waxing day 1970
of Wargaung 1373,
M.E. (31st August Instruction of the Central
2012) Inland Freight Handling
Committee Office, 2005

Forced Ward or Village Ward or The Anti Trafficking in

Labour Tract Administration Village Tract Persons Law, The State
related laws Act, The Administration Peace and Development
including Pyidaungsu Hluttaw Act, 1907 Council Law No. 5/
migration Law, No. 1/2012, 2005, The Waxing Day
The 3th Waxing of Tawthalin, 1367, M.E.,
day of Tapaung September, 2005
1373, M.E. (24th
February, 2012) & Law Relating to Overseas
its Amendment on employment, The State
28th March, 2012) Peace and Development
Council Law No 3/99, The
12th Waning Day of First
Waso, 1363 M.E. (9th July,
1999)

45 Article 24 of the 2008 Constitution stated “The Union shall enact necessary laws to protect the rights of workers.”

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Numerous reports of the ILO and Earth Rights 2) Land Confiscation and forced displacement
International (ERI) have also documented forced
labour cases in the oil and gas sector.46 In 1996, Trend in Land Confiscation
villagers who had been subjected to relocation, Land confiscation, forced displacement and forced
forced labour, torture, murder and rape on the resettlement without informed consent or adequate
Yadana pipeline project filed a lawsuit under the compensation have been a major business related
Alien Tort Claims Act against Unocal, an American human rights issue. The main actors have been
Oil Company for its complicity in those human local private companies linked with the military,
rights abuses committed by the military.47 In 2005, multinational companies in joint ventures with
Unocal agreed to compensate the plaintiffs before State owned enterprises or local businesses.50 Over
it came to trial at the Superior Court of California the past decades, the practices of land confiscation
and the case was withdrawn.48 Until recently, have been widespread across the country for various
forced labour has still been a human rights concern purposes including infrastructure projects such as
associated with oil and gas industries in addition to railways, roads and airports, expansion of urban
other issues such as land confiscation with lack of areas, establishment of industrial zones, building
adequate compensation and negative environmental army battalions, construction of state owned
impacts. 49 factories, and leasing the land to private companies
for agriculture and livestock business projects,
resource extraction projects such as oil and gas,
mining and hydropower projects.51

For instance, ERI has documented a letter dated

46 ILO, Report of the Commission of Inquiry established to March 16, 2010, sent by the MOGE to local villagers
examine the complaint concerning the observance by Myanmar
of the Forced Labour Convention, 1930 (No. 29), made by in Arakan State in the area of the “Burma-China
delegates to the 83rd Session (1996) of the Conference under pipelines” under construction. The letter gives
article 26 of the Constitution of the ILO, GB/273/5; Earth Rights notice to villagers to vacate their land within five
International (ERI), “Energy Insecurity: How Total, Chevron, days in accordance with a contract between villagers
and PTTEP Contribute to Human Rights Violations, Financial
Secrecy, and Nuclear Proliferation in Burma (Myanmar),” 2010;
and Daewoo International for the Shwe gas pipeline.
Earth Rights International (ERI), “The Human Cost of Energy: But the letter does not mention any information on
Chevron’s Continuing Role in Financing Oppression and the terms and conditions of the contract and what
Profiting from Human Rights Abuses in Military-Ruled Burma compensation villagers will receive. 52 According to
(Myanmar),” 2008; ERI, “The Burma-China Pipelines: Human interviews conducted by ERI with affected villagers
Rights Violations, Applicable Law, and Revenue Secrecy,” 2011,
accessed January 10, 2012, http://www.earthrights.org/sites/ on Maday Island in Arakan State, some of the
default/files/documents/the-burma-china-pipelines.pdf. villagers were still waiting to receive compensation
47 “Burmese Win Appeal in U.S Alien Tort Case Against
Unocal,” Human Constitutional Rights, accessed Sep 24,2012, 50 The Asian Legal Resource Center (ALRC), “Myanmar at
http://www.hrcr.or/hottopics/burmese.html. Risk of Land-Grabbing Epidemic,” June 6, 2012, accessed July
48 “Doe v. Unocal Case History,” Earth Rights International 20, 2012, http://www.alrc.net/doc/mainfile.php/hrc20/717/; See
(ERI), accessed www.earthrights.org/legal/doe-v-unocal-case- also Ta’ang Students and Youth Organization, “Grabbing Land:
history. Destructive Development in Ta’ang Region,” November 2011;
49 ERI, “Energy Insecurity,” p. 11; ERI, “Total Impact: The Lahu Women Organization, “Grab For White Gold: Platinum
Human Rights, Environmental, and Financial Impacts of Mining In Eastern Shan State,” 2011.
Total and Chevron’s Yadana Gas Project in Military-Ruled 51 The Burma Environmental Working Group (BEWG),
Burma (Myanmar),” 2009; Earth Rights International (ERI), “Burma’s Environment.”; Lawi Weng, “MPs Form Committee
“Energy Insecurity.”; ERI,” Total Impact.” ; ERI, “The Burma- to Probe Land Grabs,” The Irrawaddy, July 25, 2012, accessed
China Pipelines: Human Rights Abuses, Applicable Law, and August 3, 2012, http://www.irrawaddy.org/archives/10028; Man
Revenue Secrecy,” Situation Briefer No.1, March 2011; Shwe Gas Thu Shein,“Famous Companies Involved in Land Confiscation
Movement, “Corridor of Power: China’s Trans-Burma Oil and Cases,” Weeklyeleven, No.43, vol.7, August 1, 2012. (Burmese)
Gas Pipelines,” September 2009. 52 ERI, “The Burma China Pipelines,” p. 8 and 9.

250 Business and Human Rights in ASEAN

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for their land seized by the government to make and serving administrative officials were involved.57
way for the natural gas storage facility. Some These companies are not state-owned, but they
received no compensation for their paddy fields are businesses privately owned by some people in
which were flooded during the construction work power. Some rich businessmen entered the 2010
and left permanently unsuitable for farming.53 In election as representatives of the ruling USDP party
the case of Latpadaung Copper mine project54, over and became MPs. For instance, about 1000 acres of
7,800 acres (3,250 hectares) of farmland in Salingyi farm land from Mingaladon Township in the Yangon
Township, Sagaing Division, has been confiscated Region were leased to Zay Kabar Company which
for the project jointly operated by an economically is owned by a businessman who became USDP
and politically powerful joint venture of the Union member of Parliament after the 2010 election. The
of Myanmar Economic Holding Ltd. (UMEHL)55 seizure took place in 2010 and farmers were forced
and China’s Wan Bao mining company. The project to accept a compensation below the market price.58
reportedly began in late 2011 and landowners were In 2011, Zay Kabar Company started to develop
forced to leave the area in early 2012 without an industrial zone although the land concession had
adequate compensation.56 been issued for agricultural purposes. Since it is
not legal to use agricultural land for other purposes
In some cases of land confiscation in the Yangon without issuing “La Na,”59 the administrative office
Region, companies privately owned by some of the Yangon Region’s Mingaladon Township issued
members of parliament from the ruling Union a stop order.60 Regardless of this order, according to
Solidarity and Development Party (USDP) and the news, the Company reportedly continued to
some Union Ministers, former military officials
57 For instance, companies involved in land grabbing
reportedly include those owned by Union Minister of
Agricultural and Irrigation Ministry and Union Minister
of Economics and Trading Ministry, Chairman of Union of
Myanmar Federation of Chamber and Commerce Industry
(UMFCCI), Chairman of Myanmar Rice Trading Association,
Three MPs from the ruling USDP party; See more at Man Thu
53 Ibid. Shein,“Famous Companies Involved in Land Confiscation
54 Currently the project and the incident of violent crackdown Cases” (in Burmese); The Asian Legal Resource Center (ALRC),
on protestors against the project in November, 2012 are under “Myanmar at Risk of Land-Grabbing Epidemic.”
investigation by an investigation body led by Aung San Suu Kyi. 58 While the market price is around 2,000,000 MMK per
55 The Union of Myanmar Economic Holding Ltd. (UMEHL) acre, farmers were paid only 300,000MMK per acre. See Man
is one of the economic entities owned by the military. Another Thu Shein,“Famous Companies Involved in Land Confiscation
one is the Myanmar Economic Corporation (MEC). “UMEHL Cases.”
shareholding is restricted to only the military, active and retired, 59 Under Article 39 of the 1953 Land Nationalization Act,
and their family members.” ; See more at Sikder Haseeb Khan and agricultural land can be used for other purposes such as for
Pervaz Shams, “Banker, Trader, Soldier, Spy,” ‘Forum, Volume 3, building houses or building fish ponds or industrial zones with
Issue 3, March 2008, accessed July 10, 2012, www.thedailystar. the approval of the Ministry of Agriculture and Irrigation.
net/forum/2008/march/banker.htm; According to Source However, final decision to give this grant was made by the former
Watch and Institute for Defence Studies and Analyses, MEC is regime, the State/Division Peace and Development Council. The
an agency of Myanmar’s Ministry of Defence. MEC and UMEHL official document for this permission is called ‘La Na 39’ ; See
have reportedly taken the dominant position in a wide range of UNHCR, and UNHABITAT, “Guidance Note on Land Issues,
economic activities. Myanmar.” Note: 1953 Land Nationalization Act was abolished
56 Khin Oo Thar, “Massive Land Confiscation for Copper with enactment of Farmland Law, The Pyidaungsu Hluttaw Law
Mine”, The Irrawaddy, May 4, 2012, accessed August 20, 2012, No.11/2012, The 8th Waxing day of Tagu 1373, M.E. (30th March,
www.irrawaddy.org/archives/3655; For another example of 2012). However, for land cases that dated prior to the enactment
the land seizure among others involved by the UEMH, see also of this Farmland Law, ‘La Na 39” can be regarded as still applicable
Nework of Safegarding Farmers’ Rights, “Land Confiscation as advised by famous activist lawyer Phoe Phyu.
and pieces of success story,” 2011 (In Burmese). It is about a joint 60 William Boot, “Land Grabs Intensify as Burma ‘Reform’
venture project of the UEMH with a Chinese Company and a Races Ahead of Law,” The Irrawaddy, May 15, 2012, accessed July
local private company, Htoo Trading in Magwe Region. 15, 2012, http://www.irrawaddy.org/archives/4239.

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bulldoze snatched land without complying with the was brought into the negotiations. The Forest
order of the township authorities.61 Department was excluded. The land that the SLRD
demarcated to Yuzana included both villagers’
In some cases, companies with an agricultural customary farming and village land (even though
concession reportedly adopt the model of contract some of the land was registered and marked on
farming especially if their profit is comparably low SLRD maps) as well as the Hugawng Valley Tiger
because they lack governmental support or they are Reserve. The concession land comprises forest,
located on marginal lands. In such cases, companies wetland, and flooded land, as well as villager’s paddy
grant loans to farmers for fertilizers, pesticides and farms. The Forest Department made Yuzana keep a
seeds while farmers provide the land and labour. 10 km forested corridor for tigers to potentially pass
Then Businesses can export the agricultural produce through the valley from one mountain to the next.
purchased from farmers since they obtained Reportedly nearly 14 villages are included within the
agricultural commodity export quotas along with concession area, with an estimated 5,000 villagers
their concessions. Although this model seems better alone in just one part of Yuzana’s concession.
for farmers than obtaining little compensation
and losing their livelihoods, it represents a shift The Hugawng Valley Development and Agricultural
in the country’s agricultural sector that pushes Planning Committee (HVDAPC), composed of
farmers from working their land towards being 19 representatives from five different villages and
wage labourers for large and powerful companies.62 over 800 farmers, sent a petition letter in 2007 to
However, according to some activists and lawyers Senior General Than Shwe about the impact of the
working on land issues, the number of farmers who Yuzana concession on their lives and livelihoods
could work on contract farming is relatively small and their lack of adequate compensation. Despite
compared with the number of farmers who lost their these grassroot movement efforts, by February 2010
livelihoods due to loss of their farmlands to large over 150 households out of about 1,000 in a total
scale land concessions or other purposes as seen of 6 villages (Warazup, Nansai, Bankawk, La Ja Pa,
in the cases mentioned above.63 Such a case is what Awngra and Jahtuzup) were forced off their lands
happened in Hugawng Valley in Kachin State.64 and relocated to a Yuzana ‘model village’ with poor
farming land and without fishing grounds. One
Yuzana Company, owned by U Htay Myint, a NGO has so far documented 3,600 acres of land
businessman and currently a member of Parliament confiscated in 11 villages. Many of the villagers were
for the USDP Party, was granted a 200,000 acre forced to accept financial compensation, although
agricultural concession in Hugawng Valley some resisted as they found it inadequate. The
bordering and within the Hugawng Valley Tiger situation escalated when in July 2010 a group of
Reserve in western Kachin State in 2006. Yuzana the affected farmers filed a lawsuit on behalf of all
made an agreement with the then Northern the farmers whose land was taken against Yuzana.
Regional Commander Maj. Gen. Ohn Myint on Farmers rejected Yuzana’s offer of payments of
the concession area, and then the township SLRD65 80,000 Kyat ($80) per acre (300,000 Kyat per acre is
61 Ibid. claimed to be a more accurate value).66
62 The Burma Environmental Working Group (BEWG),
“Burma’s Environment.” In spite of the effort of the farmers, Kachin State
63 Phoe Phyu, a well-known activist and lawyer gave this court ordered Yuzana to pay the same low amount
comment based on his own experience. An informal talk with
Phoe Phyu on 23, Sep, 2012.
64 The Burma Environmental Working Group (BEWG),
“Burma’s Environment.”; See also The Kachin Development
Networking Group (KDNG), “Tyrants, Tycoons and Tigers:
Yuzana Company Ravages Burma’s Hugawng Valley,” 2010. 66 The Burma Environmental Working Group (BEWG),
65 The Settlement and Land Record Department (SLRD). “Burma’s Environment.”

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that the company was supposed to pay in 2011.67 given it was not registered with the SLRD. Even if
In late August 2012, the farmers went on strike in farmers registered their land with the SLRD and
front of Yuzana company in Yangon and the news had the land use certificate, land confiscation was
reported that UHtay Myint agreed to return a still possible.72 For instance, in Phyarpone Township
thousand acres of farmland after negotiations with in Ayeyarwaddy Region, in a farmer’s narration, his
the farmers’ representatives. According to the same farmlands were confiscated as a punishment for his
news source, in another case, more than fourty failure to sell a compulsory quota of the produce to
thousand acres of confiscated land were returned to the state in 1996.73 Similarly, village and township
the government to give it back to farmers.68 Except authorities reportedly confiscated land for a variety
that, until the end of this year, most of farmlands of reasons and then resold it to their friends or
were not returned to the farmers.69 relatives. In Phyarpone Township, about 3000 Acres
were confiscated in 1996 for leasing the land to a
Legal Framework Singaporean company74. Farmers were not given
any compensation.
Under a set of rules, “Procedures Conferring the
Right to Cultivate Land/ Right to Utilize Land The new laws related to land use, “Farmland Law’
for Agriculture, Livestock Poultry Farming, and and “Vacant, Fallow and Virgin Lands Management
Aquaculture Purposes,” adopted by the former Law (VFV Law)”75 enacted by the new government
regime in 1991, the government leased the and passed by the Parliament in March also do
cultivable land, fallow land and waste land to state- not seem to adequately address the problem of
owned economic organizations, joint-ventures land grabbing.76 According to article 37(a) of the
including foreign investment, other organizations 2008 Constitution, the State still owns all land and
and private individuals on a commercial basis such resources. Although farmers can get their land use
as for agriculture, livestock poultry farming and
72 The Burma Environmental Working Group (BEWG),
aquaculture purposes.70 Most villagers could not “Burma’s Environment.”
prove ownership of their land, because they did not 73 Since 1964 under the Revolutionary Council (RC) regime,
have a formal land registration title. farmers were required to sell a compulsory quota of the produce
to the state at low prices. The system was continued by the socialist
According to Win Myo Thu, managing director of government and the State Law and Order Restoration Council
ECoDev,a local NGO, one third of rural farmers (SLORC), which later changed its name to the State Peace and
Development Council (SPDC) until 2002; Tin Soe, “Myanmar in
are landless and only 15% of farmers who own Economic Transition: Constraints and Related Issues Affecting
land have land use certificates.71 In many cases, the Agriculture Sector,” Asian Journal of Agriculture and
customary land use of farmers was ignored and Development 1, 2 (n.d.): p. 58-68.
agribusinesses were awarded such “vacant’ land 74 According to farmers, later they were informed of a
joint project between Yuzana Company and the Ministry of
67 Khin Hnin Htet, “Court’ cheats’ Yuzana Land Grab Agriculture and Irrigation on those farmlands in 1998. But until
Victims,” DVB, 11 January 2011, accessed July 15, 2012, http:// now, only one third of the land was utilized and the rest was
www.dvb.no/news/court-%E2%80%98cheats%E2%80%99- wasted and abandoned; See “Land confiscated and abandoned,”
yuzana-land-grab-victims/13662. The Yangon Times, Vol.8, No.33, Aug.30, Sep 5, 2012. (Burmese).
68 Ibid. 75 The Vacant, Fallow and Virgin Lands Management Law,
69 Tun Tun Win, “Land Grabbing Cases of Military and Private The Pyidaungsu Hluttaw Law No. 10/2012, The 8th Waxing
Companies,” Eleven, 08 January 2013, accessed January 30, day of Tagu 1373, M.E. (30th March, 2012); Farmland Law, The
2013, http://elevenmyanmar.com/component/article/53-top- Pyidaungsu Hluttaw Law No.11/2012, The 8th Waxing day of
events-2012/business/2039-land-grabbing-cases-of-military- Tagu 1373, M.E. (30th March, 2012).
and-private-companies. 76 The Asian Legal Resource Center (ALRC), “Myanmar
70 The Burma Environmental Working Group (BEWG), at Risk of Land-Grabbing Epidemic.” Thomas Kean, “More
“Burma’s Environment.”; See also UNHCR, and UNHABITAT, Warnings Over Land Bills: Experts Say Two Pieces of Draft
“Guidance Note on Land Issues, Myanmar.” Legislation Have ‘Major Gaps’ that could be Exploited for Land
71 Conversation with Win Myo Thu on 14 Sep,2012 on Grabs,” MyanmarTimes, Vol 31, No. 615, February 20-26, 2012.
problems of new Farmland Laws. http://www.mmtimes.com/2012/news/615/news61510.html

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certificates (LUC)77 under the 2012 Farmland Law Provisions in the Farmland Law on compensation
including the right to sell, the right to exchange, the for land being seized for development projects of
right to access credit, the right to inherit, and the the government are not sufficient.83 In addition, the
right to lease78, shifting cultivators in upland areas law does not require the ‘free, informed and prior
of the country are excluded from such provisions79. consent’ of affected farmers. According to Win Myo
Shifting cultivators cannot apply for land use Thu, the lack of a clear definition of what is meant
certificates under the rule that requires farmers by “the state” and “projects for its benefits,” can
not to leave the land without sound reasons. These jeopardize the effective application of the protection
shifting cultivations can be regarded as ‘vacant which the law wants to provide.84
and fallow land’ and therefore be subject to land
concessions to businesses. 42% of farmers live in In addition, Farmland Administrative Bodies
upland areas and their livelihood is agriculture. Less (FAB) are vested with the power to oversee land
than 10% of them have land use certificates.80 dispute cases and the decision power at various
administrative levels such as the ward and village
The 2012 Farmland Law also restricts freedom of tract level, the township level, the district level and
farmers to choose crop. If land is registered as paddy regional or state level.85 The Central level FAB is
land, they cannot grow other crops and if they want chaired by the Minister and Deputy Minister of
to do so, they have to apply to the government.81 the Ministry of Agriculture and Irrigation (MOAI)
According to Win Myo Thu, it hampers the practice and the Director General of the SLRD department
of integrated farming and the rights of farmers to is the secretary and heads of relevant government
adapt their crop choice from time to time to land departments are members. The central body
fertility and to the market situation. If farmers fail to will have to establish respective FABs at various
comply with the rule for growing other crops, their administrative levels.
LUC can be revoked.82
The fact that decisions of the FAB may not be
appealed to a court of law, denies the rights of
farmers’ access to an independent judicial system.86
77 Articles 4 to 8, Chapter II of the 2012 Farmland Law contain And it renders the mechanism unconstitutional
provisions on granting land use titles. Land use certificates can be due to lack of separation of powers between the
issued by township Farmland Administrative Body (FAB). First
applications on land use titles have to be submitted to township
legislative, executive and judicial branches of the
SLRD offices through township FAB. Township SLRD need to government as espoused in the current Constitution.
make investigation of land use applications and report to the Given the history of the former Land Committees
township FAB. Finally the approval to issue land use certificates which rarely recognized the interests and rights
will be decided by the district FMB. Upon this approval made of smallholder farmers, it is essential to improve
by the district FAB, farmers need to give registration fee to the
township SLRD and after that, the township FMB will issue the existing dispute resolution mechanisms in order to
certificate accordingly. strengthen tenure security for these.87
78 Article 9, Chapter III, the 2012 Farmland Law.
79 The FAO defines shifting cultivation as “a system in which
relatively short periods of continuing cultivation are followed 83 Article 26 and 27, Chapter IX, The 2012 Farmland Law, deal
by relatively long periods of fallow”. 1982, FAO/University of with remedy and compensation.
Ibadan Workshop on Shifting Cultivation and Extension, http:// 84 Meeting with Win Myo Thu on 14 Sep, 2012.
www.fao.org/docrep/r1340e/r1340e04.htm. 85 Articles 22-25, Chapter 8, the 2012 Farmland Law.
80 Meeting with Win Myo Thu, Managing Director of Eco Dev 86 Articles 11 and 19, Constitution 208 the right of citizens to
and a local expert in land and environmental issues and doing access to an independent judiciary
research on these areas. 87 See also Food Security Working Group’s Land Core Group,
81 Article12(8), Chapter IV, The 2012 Farmland Law. “Legal Review of Recently Enacted Farmland Law and Vacant,
82 The LUC will also be revoked if farmers fail to inform the Fallow and Virgin Lands Management Law: Improving the
Farmland Administrative Body (FAB) of reasons for land Legal and Policy Frameworks Relating to Land Management in
remaining fallow or not to build structures without permission Myanmar,” November 2012.

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The VFV law is identical to the 1991 Prescribing is to fix the rate of security fees to be deposited for
Duties and Rights of the Central Committee for the use of VFV land, to intervene when acquired
the Management of Cultivable Land, Fallow Land VFV land is not being developed within the allotted
and Waste Land with regard to allowing the lease time frame and to eventually revoke the lease
of VFV land to citizens, private sector investors, accordingly.91 If the law is implemented effectively,
government entities and NGOs for agricultural it might be able to prevent land speculation and
developments, mining and other purposes allowed facilitate the returning of undeveloped land to
by law. However, article 25 of the new VFV Land law farmers.
does recognize the usage of VFV land by farmers
without formal recognition by the government Article 12 of the VFV Law permits the lease of VFV
and grants protection of their interests.88 The law land to foreign investors or organizations consisting
in conjunction with the Farm Land Law allows of foreign investors for businesses that citizens are
the existing use of VFV land by farmers to be not capable of undertaking.92 On the one hand, there
formally recognized by the government and to be are no adequate mechanisms to protect the rights
reclassified as farmland and hence apply for land and interests of small holding farmers against land
use certificates.89 confiscation and forced relocation in the VFV law.
On the other, land confiscation and forced relocation
In contrast to the 1991 VFV rules, the 2012 VFV is prohibited under Article 126 of the new Foreign
law and its bylaw do consider some protection Investment Rules by not permitting the lease of land
mechanisms for farmers. However, they still need for the investment purpose if there is objection from
to be enhanced to effectively allow equitable affected communities.93 The provision also requires
resolution of land conflicts between smallholder
the consent from communities and permission from
farmers, the State, the private sector and investors
the relevant government departments in giving
by establishing an independent dispute resolution
compensations at market value. Besides, investors
procedure and adjudication mechanisms.
According to the 2012 VFV law and its bylaw, the need to ensure relocation and resettlement of local
Central Committee for the Management of Vacant, people and provide jobs to them in their investment
Fallow and Virgin Lands (CCVFV) has the overall projects. Article 35 of the 2012 Foreign Investment
management responsibilities regarding VFV lands Law allows foreign investments in joint venture
including dispute resolution in coordination with with local businesses to utilize land for agriculture
other government departments and agencies. and livestock rearing. According to Article 31 and
32 of the 2012 FIL Law, land lease periods to foreign
CCVFV is a national, multi-ministerial committee investors from the government or from authorized
formed at the President’s discretion who may private owners are up to 50 years, depending on
appoint the Minister of MOAI as Chairperson; the the type and size of the investment. Leases can be
Director General of the SLRD as the Secretary and extended twice for another ten years.
individuals from various government organs, or
other suitable persons of his choosing, as members
of the CCVFV.90 One of the functions of CCVFV

88 Article 25, Chapter 2012 VFV Law.

89 Article 10 (4), Chapter 4 of the VFV law allows rural farmers
families to apply for the use of a maximum area of 50 acres of
VFB to be developed and managed. And it is in conjunction with
Article 8, Chapter 2, Article 34 of Chapter 11 of the Farmland law 91 Article 36, Chapter 4, the VFV by law and article 22, Chapter
where VFB land can be reclassified as Farmland and the land use 7, the 2012 VFV Law.
certificate can be applied. 92 Article12,Chapter 4, the 2012 VFV Law
90 Article 3, Chapter II, the 2012 VFV Law. 93 Article 126, Chapter15, Foreign Investment Rules.

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Table 2: Major laws in relation to land rights issues

Laws under Laws

Issue Recently Enacted Laws Existing Laws
Review Repealed
Laws The Vacant, Fallow and Virgin The Vacant, Fallow The Law Constitution
related Lands Management Law, The and Virgin Lands Safeguarding 2008
to Land Pyidaungsu Hluttaw Law No. Management Law, Peasants
rights 10/2012, The 8th Waxing day The Pyidaungsu Rights, 1963 Protection of
issues of Tagu 1373, M.E. (30th March, Hluttaw Law No. Wildlife and
The Land Conservation of
2012). 10/2012, The 8th
Nationalization Natural Areas
Waxing day of
Farmland Law, The Pyidaungsu Act, 1953 Law(1994)94
Tagu 1373, M.E.
Hluttaw Law No.11/2012, The 8th (30th March, 2012). The Tenancies Duties and
Waxing day of Tagu 1373, M.E. Law, 1963
(30th March, 2012). Farmland Law, Rights of
The Pyidaungsu the Central
Foreign
The Foreign Direct Investment Committee
Hluttaw Law Investment
Law, 2012, The Pyidaungsu for the
No.11/2012, The Law, 1988
Hluttaw Law No.21/2012), The 3rd Management of
8th Waxing day of
Waning of Thadingyut, 1347 M.E. Culturable Land,
Tagu 1373, M.E. Fallow Land
(2nd November, 2012) (30th March, 2012). and Waste Land
The FDI regulations, the Republic Forest Law (1992) (1991)95
of the Union of Myanmar,
Land Acquisition
Ministry of National Planning
Act 1894
and Economic Development,
Notification No. 11/2013, The
5th Waning day of PyarTho 1374,
M.E.(31st January, 2013).

3) Environmental and Social Impact health.96

Over the last decades, extractive industries such
Logging
as logging, mining and oil and gas extraction have
negatively affected the rights to food security, to In Myanmar logging is mainly responsible for
livelihood and the right of indigenous people to deforestation. Several logging projects along the
live their own cultural practices people. In addition Thai-Myanmar Border and the China Border
deforestation, , soil erosion, landslides, river in northern Myanmar during the 1990s and
siltation, damaging topsoil fertility by chemicals, 2000s contributed to deforestation in Myanmar.
and pollution had negative impacts on the right to Myanmar has been regarded as having one of the
highest deforestation rates in the world with an
94 “The Law provides a mechanism for compensating
individuals or businesses who have existing rights to the land 96 See also at The Burma Environmental Working Group
under relevant acquisition laws” (Article 8), and the Director (BEWG), “Burma’s Environment: People, Problems, Policies,”
General of the Forest Department can “make provisions for 2011; Kachin Development Networking Group (KDNG),
reasonable rights and privileges in respect of the affected rights “Valley of Darkness: Gold Mining and Militarization in Burma’s
of the people in the region” where the natural area is established Hugawng Valley,” 2007; Ye Yint Aung, “ Please Rain, Rain Come”
(Article 11); See also Food Security Working Group’s Land Core Weeklyeleven, No.42, vol.7, July 25, 2012 ( In Burmese); Earth
Group, “Legal Review of Recently Enacted Farmland Law and Rights International (ERI), “Total Impact: The Human Rights,
Vacant, Fallow and Virgin Lands Management Law. Environmental,and Financial Impacts of Total and Chevron’s
95 It is not clear if these rules have been formally repealed. Yadana Gas Project in Military-Ruled Burma (Myanmar),” 2009.

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estimated 800,000 to 1 million hectares a year. scale mechanized industry has higher negative
97
Logging concessions for valuable woods such impact on environment and the local people.103
as teak, ironwood and rosewood were given to
local, Chinese and Thai business people with good Another example are the copper mine projects
connections to the government or to insurgent known as the Sabetaung and Kyisintaung mine
groups which concluded ceasefire agreements with projects (S&K mines) and the Letpadaungtaung
the government since the mid 1990s.98 Although project in Monywa township in Sagaing Region.
logging might had somewhat decreased over the The Sabetaung mine project operated by Myanmar’s
past years, until recently, timber export has still state-owned Mining Enterprise No.1 and RTB-Bor
been a major source of income for the military Copper Institute of Yugoslavia, reportedly operated
regime99 and the ethnic armed groups in ceasefire from 1983 until the mid-1990s. Chemical run
agreements according to a 2009 report of Global off from the mine had destroyed farmlands and
Witness.100 A warning issued by the Union Minister polluted underground clean water with the result
of Environmental Conservation and the Minister of that the locals’ livelihood, food security, health and
Forestry that punitive action will be taken against access to clean water was severely jeopardized.104
illegal timber trading indicates that it still an issue Full scale commercial operations at the S& K mine
today.101 began in 1998 with the involvement of Ivanhole
company and due to high level of acid released
from the mine, farmlands in this area have been
Mining destroyed to an extent that trees cannot grow there
Since 1988 when the economy was opened to foreign anymore.105 In addition, local people reportedly
investments, the Ministry of Mines has reportedly developed skin diseases and severe breathing and
given hundreds of mining concessions for the rich eye problems.106 Nevertheless, the Letpadaungtaung
mineral resources of Myanmar to local and foreign mine project became operational in 2011. It is run
investors mostly from China.102 For instance, gold by UMEHL and China’s Wan Bao mining company
mining sites in Hugawng Valley in Kachin State and local villagers are currently demanding to stop
along Chindwin River had increased from 14 in the project. In addition to inadequate compensation
1994 to 31 in 2006 and the number of machine or for their loss of farmland and livelihood, there is a
hydraulic mining and pit mines had reached about high concern about the destruction of the cultural
100 by 2006. Moreover, this particular example of heritage important not only for the region but also
gold mines in Hugawng Valley indicates how large- for the country.107
97 Martin Smith cited in BEWG, “Burma’s Environment.”;
See also Global Witness, “A Choice for China: Ending the
Destruction of Burma’s Northern Frontier Forests,” London, 103 KDNG,”Valley of Darkness.”
2009; Global Witness, “A Disharmonious Trade: China and the 104 Testimonies of a local farmer and former project manager at
Continued Destruction of Burma’s Northern Frontier Forests,” S & K project at a ceremony calling for stopping Letpadaungtaung
London, 2009. Mine Project organized by 88 students on 30, Sep. 2012.
98 Global Witness, “A Disharmonious Trade,” 2009, p .69-84. 105 Ibid.
99 Revenue from logging on average amounts to USD 106 Ibid.; See also findings from Australian scholars at
200 million a year. Martin Smith cited in BEWG, “Burma’s Thomas Maung Shwe, “Ivanhoe Mines Receives $ 103 million
Environment.” from Monywa Mine Sale,” Mizzima, August 5, 2011, accessed
100 Global Witness, “A Disharmonious Trade.” September 20, 2012, http://www.mizzima.com/business/5729-
101 “Union Minister Said Illegal Timber Trading Will Be ivanhoe-mine-sale.html.
Punished,” Yangon Times, August 9-15, 2012 (in Burmese). 107 The Venerable Ledi  Sayadaw  U Ñanadhaja (1846-1923)
102 The Burma Environmental Working Group (BEWG), stayed in Ledi village near the town of Monywa. He is regarded
“Burma’s Environment: People, Problems, Policies,” 2011; as the most outstanding Sayadaw of the age. Many of his work on
Kachin Development Networking Group (KDNG), “Valley of Buddhism are still available both in Burmese and English as well.
Darkness: Gold Mining and Militarization in Burma’s Hugawng Due to mine operations, memorial places related to the Sayadaw
Valley,” 2007. has been damaged.

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Oil and Gas Shwe Natural Gas Project and the Burma-China
Myanmar is rich in oil and gas. As of January 2011, oil transport project. Two massive pipelines will
proven crude oil reserves of Myanmar stood at 50 transport gas from Myanmar and oil from the
million barrels which is rank 79 worldwide.108 Proven Middle East and Africa across Myanmar to China.
gas reserves stood at 283.2 billion cubic meters
According to Arakan Oil Watch, mining operations
which is rank 40 as of January 2011.109 Richness of oil
for the construction of the deep sea port on Maday
and gas reserves in Myanmar has attracted foreign
Island where China’s crude oil tankers will dock on
investments since the former regime intensified the
their way to China from the Middle East and Africa,
opening of the sector in 2004. As of August 2012,
killed hundreds of fish and destroyed important
altogether 20 foreign companies were engaged in 10
fishing grounds where local people have been
onshore and 27 offshore blocks.110
fishing for centuries.114 In addition, there are other
The first foreign investment projects were Yadana social problems as well. Roads have been damaged
and Yetagun gas projects undertaken by French, by the project construction in Kyaukphyu Township
American, Thai, Malaysian, and Japanese oil and the locals in Arakan State have not seen a new
companies in partnership with the Myanmar Oil public jetty for them yet since the existing public
and Gas Enterprise (MOGE), the State Owned jetty is now being used solely for the ships for the
Enterprise in the 1990s. Natural gas is being project.115
exported from Yadana and Yetagun projects and it is
expected that the export from other large projects,
the Zawtika and Shwe Gas projects which are under Environmental and Social Impact Assessment (ESIA
construction, will begin in 2013.111 The Zawtika assessment)
project is a joint venture between the MOGE and ESIA Legal Framework
the state owned PTTEP Oil Company of Thailand.112
Article 45 of the 2008 Constitution stated
The Shwe Gas projects are led by Chinese, South “The Union shall protect and conserve natural
Korean, and Indian multinational companies in environment.” Article 390 also includes a provision
partnership with the MOGE, local companies and on environmental conservation. The legal
the state security forces. The projects are also known mechanism for ESIA is now put in place with the
as the “Burma-China pipelines,”113 consisting of the 2012 Environmental Conservation Act.116 Article7
(13) of Chapter 4 mentions the need for SIA and
108 “The World Factbook: Myanmar,” Central Intelligence
Agency,” accessed September 23, 2012, https://www.cia.gov/ EIA for any project operated by the government
library/publications/the-world-factbook/geos/bm.html. or organizations or individuals. Article 14 is
109 Ibid. related with waste disposal in accordance with
110 “20 Foreign Companies engage in 37 onshore and offshore environmental standards and Article 19 is related
oil and gas blocks,”Weekly Eleven, No.44, Vol.7, August 8, 2012
to maintenance of cultural heritage. For violations
(In Burmese).
111 Nyein Chan Win, “Myanmar Estimates US $ 800m from of bylaws, regulations and directives issued under
Gas Revenue,” Weekly Eleven, accessed July 30, 2012, http:// this law, punishment is not more than one year or
eversion.news-eleven.com/index.php?option=com_content& fine or both under Article 32.117 And critics indicate
view=article&id=977:myanmar-estimates-us-800m-from-gas-
revenue-&catid=43:bi-weekly-eleven-news&Itemid=110. 114 Arakan Oil Watch cited in BEWG, “Burma’s Environment.”
112 “Zawtika Gas Project Opens Temporary Base Camp,” 115 Juliet Shwe Gaung,“Concern Remain over Shwe Gas
Mizzima, February 1, 2011, accessed July 30, 2012, http:// Benefits,” The Myanmar Times, August 2012.
democracyforburma.wordpress.com/2011/02/01/zawtika-gas- 116 Environmental Conservation Act, Pyidaungsu Hluttaw
project-opens-temporary-base-camp/. Law No. 9/2012, The 8th Waxing day of Tagu 1373, M.E. (30th
113 Earth Rights International (ERI), “The Burma-China March, 2012).
Pipelines: Human Rights Abuses, Applicable Law, and Revenue 117 Article7 (13), Chapter IV. Article 14, 19 and 32 of the 2012
Secrecy,” March 2011. Environmental Conservation Act.

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weak enforcement penalties.118 Currently, the new gold miners.122 The Ministry said it has issued
Environmental Conservation Law is said to be in directives prohibiting use of cyanide by artisanal
the process of revision.119 and small-scale miners with effect from 1st January
2000. However, the Ministry admits that “it is
Recently enacted foreign investment rules do require rather difficult to impose environmental rules on
ESIA specifically for large projects according to the them unless action is taken according to law.”123
rules of the Ministry of Environmental Conservation Under section 32 of the Mining law 1994, there
and Forestry (article 33 of FDI regulations). are provisions that the holder of a permit who
violates any of the rules relating to section 13 will
be punished with one year imprisonment or with
ESIA Implementation a fine of 10,000 kyats or with both. One of the
The aforementioned two recently enacted laws rules under section 13 is related to environmental
conservation.124 However, there are no specific
and rules still need to be enforced. According to
provisions for punishment for using toxic chemicals.
scholars, most of the environmental and social
problems associated with extractive industries have The Ministry of Mines also said that it is the policy
been attributed to a lack of ESIA or inadequate ESIA of the Ministry that require all large scale mining
over the past decades. projects to undertake EIA as part of their feasibility
study. “The foreign companies either follow the
Some critics have pointed out the weak enforcement World Bank standards or standards not lower than
of the existing mining laws and regulations, the lack those existing in their countries.”125However, as
of provisions in the 1994 mining law for EIA or SIA having seen in the earlier examples, in practice, this
and the lack of provisions for prosecution or fines rule was weak and ineffective. Recently, the Ministry
in case of pollution releases such as mercury.120 of Mines issued an order in March 2012, banning
Although the 1996 Myanmar Mines rules mention mining along the country’s four major river courses
the duty of large scale mineral production to or closer than 90 meters to the river banks.126 To
“backfill arrange, vegetation or reclaim the land what extent this rule can be enforced is yet not clear.
in the areas already mined out to the satisfaction
of the Ministry,”121 no grievance or enforcement Similar problems with weak SIA or EIA practices
mechanisms and no formal requirements for EIA is were found in the oil and gas sectors and
mentioned. hydropower project sites.127 According to a remark
of U Win Myo Thu, efforts to prevent social
According to the Ministry of Mines, environmental problems were not encouraged, or SIA or EIA were
problems are related to artisanal miners and illegal not done effectively.128 ERI has also documented
the failure of the then government to do SIA and
118 Nay Lin Aung, “Burma’s Environmental Law Undergoes EIA or encourage multinational companies to do
Revisions,” Mizzima, 25 July 2012, accessed July 30, 2012,
http://www.mizzima.com/news/inside-burma/7596-burmas- 122 Ibid.
environment-law-undergoes-revisions.html. 123 Ibid.
119 Nay Lin Aung, “Burma’s Environmental Conservation Act 124 Ibid.
Undergoes Revisions,” Mizzima, 25 July 2012, accessed July 30, 125 Ibid.
2012, http://www.mizzima.com/news/inside-burma/7596- 126 Yawdlao, “Myanmar Bans Mining on Four Major Rivers,”
burmas-environment-law-undergoes-revisions.html. Mizzima, March 30, 2012, accessed http://howdyasia.com/
120 BEWG,”Burma’s Environment.”; KDNG,” Valley of buram-bans-mining-on-four-major-rivers/.
Darkness.” 127 The Burma Environmental Working Group (BEWG),
121 Soe Mra, “Status and Current Issues of Mining Regulatory “Burma’s Environment.”
Regime in Myanmar,” Department of Mines, accessed July 20, 128 Win Myo Thu at the ceremony calling for stopping
2012, http://www.freewebs.com/myanmarmines/regulatory. Letpadaungtaung Mine Project organized by 88 students on 30,
htm\. Sep. 2012.

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so.129 Even if EIA and SIA were done, it was neither 3 Union Members from Ministry of Environmental
disclosed to the public nor did it include public Conservation, Ministry of Energy and Ministry of
consultation. For instance, one SIA done by China Mines as members.131 Main tasks of the Committee
National Petroleum Corporation (CNPC) that is include ensuring better management for extractive
building the crude oil pipeline in collaboration with industries by developing responsible environment
the MOGE in Arakan State, was a needs assessment and cooperating with relevant stakeholders from
for socio-economic programs for villagers rather both private and public sectors.
than assessment of potentially negative impacts of
the pipeline projects.
Recent Developments and challenges ahead

Extractive Industries Transparency Initiative The new quasi-civilian government has started
(EITI)130 to undertake a series of economic and political
reforms since it took office in March 2011 ending
Table 3:Existing Major Laws related to ESIA the military rule after more than half a century.
assessments
Laws under
Law
Issue Recently enacted laws review or Existing Laws
Repealed
drafting132
Laws Environmental Conservation The Myanmar Constitution 2008
Relevant Act, Pyidaungsu Hluttaw Law Mines Law,
to ESIA No. 9/2012, The 8th Waxing day 1994, The State The Conservation
of Tagu 1373, M.E. (30th March, Law and Order of Water
2012). Restoration Council Resources and
Law No. 8/94, Rivers Law
The Myanmar Mines Law, the 2nd Waxing (2006)133
1994, The State Law and Order Day of Tawthalin,
Restoration Council Law No. Protection of
1356 M.E. (6th
8/94, the 2nd Waxing Day Wildlife and
September, 1994)
of Tawthalin, 1356 M.E. (6th Conservation of
September, 1994) Natural Areas
Law (1994)134
Foreign Investment Law (2012)

Foreign Investment Rules (2013)

In spite of such problems during the past regime, Several measures are being undertaken to strengthen
the new government has shown its commitment the rule of law and to move towards a more open
to adopt good practices in extractive industries society. For instance, hundreds of political prisoners
including incorporating ESIA measures in its 131 ‘Formation of Extractive Industry Transparency Initiative
legislation. Especially, the government is determined Leading Authority,” Notification No 99/2012,1st Waxing of
to be a member of EITI and for this purpose, EITI Nadaw, 1347 ME (14 December 2012).
Leading Authority was formed with Union Minister 132 Note: This list is not exhausted, just only based on
information available, the list was drawn. Other existing laws
of President Office as Chairman and Union Minister might or might not be reviewed.
of Ministry of Finance and Revenue as Secretary and 133 Although no ESIA assessments are included in the law, the
law contains penalty provisions for causing damage to water
129 ERI, “The Burma China Piplelines,” p.14, 15 resources and rivers (Article 25-29).
130 See also Section 6 (6.1) about EITI initiative mechanisms 134 The Law also contains for penalty provisions for causing
the state started to adopt. damage to any ecosystems within a natural area (Article 36).

260 Business and Human Rights in ASEAN

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have been released although there are still remaining Myanmar is still at the beginning stage to upgrade
ones. Peace talks are ongoing with ethnic rebels in and improve its infrastructure needs in line with
spite of difficulties and problems that remain to the 21st century.138 Similarly, improving legal
be solved.135 Other measures include easing media and financial systems will take some time. In the
and internet control to some extent, legalizing meantime, cronyism and rent seeking is still a
protests, and reforming decades of complicated remaining issue. Recent privatization of SOEs was
dual exchange rate system to a managed floating still under control of companies closely associated
rate. Such reform measures have given hope for a with the authorities.139 Eradicating widespread
democratic future in Myanmar. As a reward, many poverty, improving public health, education and
countries lifted the sanction imposed in the 1990s providing adequate social services still need to be
and now allow investments in Myanmar136 carried out effectively.

Attracted by such new developments and rich natural Given this backdrop, in this transitional period,
resources, foreign investors show great interest in human rights principles and standards such as
Myanmar and are prepared to engage in various participation, non-discrimination, transparency,
business sectors that are still underdeveloped. accountability and the rule of law need to be
The most attractive sector is extractive industries integrated and complied with in the country’s
especially in oil, gas and mining. At the same time, economic and social development process. To
incoming investors face many challenges, most create a fair and equitable society, it is of utmost
importantly inadequate physical,137 financial and importance to eradicate corruption and establish an
legal infrastructures to support trade and business independent judicial system.
presence; and human rights related risks associated
the existing and ongoing investment projects as
seen in the above. I. How has the State reacted to the
UN “Protect, Respect and Remedy”
135 “CSW Calls on Burma Army to Stop Attacks on Kachin Framework (“Framework”)?
and Begin a Peace Process after One Year of War,” Christian
Solidarity Worldwide, http://dynamic.csw.org.uk/article. Even though the state has not made an official
asp?t=press&id=1378 endorsement of the UN “Protect, Respect
136 See also ADB, “Myanmar in transition.” and Remedy” Framework, the government
137 Access to electricity is only 13% of the whole population
in 2009 and internet user is only 1 person per 100 people in
recognizes the importance of the principles and
2011 although it has increased from 0.1% in three consecutive its implementation. During 2012, the Institute for
years since 2007 and 0.3% in 2010. (“Access to Electricity (% of Human Rights and Business, IHRB, held several
population),” The World Bank, 2012, accessed Sep 30,2012,
data.worldbank.org/indicator/EG.ELC.ACCS.ZS.) As of 138 Patricia Lee, ”Corruption and Unsophiscated Legal System
2011, mobile cellular user is only 1.244 million out of around Topped List of Risks in Myanmar, Experts Say,” Thomson Reuters,
6 million population ranking 148 out of 218 countries, “The June 21, 2012, accessed July 21, 2012, http://www.trust.org/
World Factbook: Myanmar,” Central Intelligence Agency.” In trustlaw/news/corruption-and-unsophisticated-legal-system-
the past, while SIM cards were affordable to almost everybody in topped-list-of-risks-in-myanmar-experts-say/; Flavia Krause-
neighbouring countries like Thailand, SIM cards were incredible Jackson, “Myanmar’s Corruption Legacy Shadows Opening to
expensive in Myanmar and it was a luxurious thing and a symbol Investors,” May 17, 2012, accessed July 20, 2012, http://www.
of status and power. A SIM card alone could cost around US $ businessweek.com/news/2012-05-17/myanmar-s-corruption-
2000 about 5 years ago. Nowadays, situation is much improved legacy-shadows-opening-to-investors.
and more accessible to the grass root level compared with the 139 “Burmese Government “Cronies” Said Benefiting from
past. Even that, percentage of the population that can use mobile Privatization,” BBC Morning Asia Pacific, July 22, 2010, http://
is still very low). Given this backdrop, if the capital that will be www.accessmylibrary.com/article-1G1-232373247/burmese-
coming in Myanmar cannot reach out to remote areas and if it government-cronies-said.html; Zaw Htaik, “An Official from
only concentrates in few big cities, gap between the rich and the World Bank said Myanmar needs an effective strategy for
poor will be getting wider and wider. Consequently, it can lead to successful economic reform,” Yangon Times, Vol 8, No. 30.
social unrest. August 15, 2012.

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multi stakeholder workshops on the UN Guiding limitations provided for in other laws. This has raised
Principles and their application to Myanmar, both critique because laws issued by the former military
inside and outside of the country. During those regime did not follow democratic procedures
workshops, senior level government officials have and may result in overruling the Constitution.142
expressed their intention to adhere to the UN Although the government recently repealed Martial
“Protect, Respect and Remedy” framework. Law Order 2/88 that was used to sentence dissidents
to long prison terms, a number of such draconian
laws and rules targeting opposition groups, rights
II. Is the State duty to protect against human activists and journalists, such as the Electronic
rights abuses by third parties, including Act, Section 5 (j) and Section 505 (b) of the Penal
businesses (“State Duty to Protect”), Code, and Article 17/1 of the Illegal Organization
recognized in the country’s domestic Act remain in place.143 Even laws promulgated by
legal system? the parliament such as the new laws on labour, land
and environment,144 still need to be reviewed so that
1. Do any of the State’s domestic laws, including they can give adequate legal protection.
the Constitution / basic law of the State,
provide a basis for a State Duty to Protect ? However, article 23 (a) and 24 of the 2008
Constitution state “The Union shall enact necessary
Myanmar has not enacted human rights and anti- laws to protect the rights of the peasants,” and “The
discrimination laws yet. Union shall enact necessary laws to protect the
rights of workers.” These two provisions indicate the
The 2008 Constitution state’s recognition of their duty to protect the rights
of workers and peasants by promulgating laws and
Although the 2008 Constitution contains some regulations. On the other hand, rights of indigenous
provisions on human rights including education, peoples, minorities, children and the disabled are
health, security, privacy, freedom of expression, not specifically mentioned in the Constitution.145
association, religion, culture, language and
literature.,140 There is no general provision on the
state duty to protect but several Articles implicitly
refer to it: Articles 34 and 354 grants freedom of
opinion, freedom of speech, peaceful assembly,
freedom of association, and freedom to profess
and practice religion. Under Article 372, the state 142 Yash Ghai, “The 2008 Myanmar Constitution: Analysis
guarantees property rights and under article 19, the and Assessment,” http://www.burmalibrary.org/docs6/2008_
right to access to independent justice is guaranteed. Myanmar_constitution--analysis_and_assessment-Yash_Ghai.
pdf
143 Saw Yan Naing, “Ban Repeal Welcomed, Amid Calls for
Regarding the acceptance, granting and guarantee More Reform.” The Irrawaddy, January 30, 2013, accessed
of the rights, there is concern about some clauses February 1, 2013, http://www.irrawaddy.org/archives/25598;
that can impose limitations on rights and freedom, “Discussion on Old Laws to Be Repealed,” Radio Free Asia, 15
August, 2012, accessed 17 August 2012, http://www.rfa.org/
such as state security, prevalence of law and order,
burmese/news/parliament-law-discuss-08152012113221.html.
community peace and tranquillity or public order, 144 Refer to Table 1, 2 and 3 for detailed references of the
public morality, health and the other provisions of recently enacted laws related to labour, land and environment.
the Constitution.141 Most of the rights are subject to 145 Yash Ghai, “The 2008 Myanmar Constitution: Analysis
and Assessment,” http://www.burmalibrary.org/docs6/2008_
140 2008 Constitution, Section 34, 353, 354, 365. Myanmar_constitution--analysis_and_assessment-Yash_Ghai.
141 2008 Constitution, Section 34, 354. pdf.

262 Business and Human Rights in ASEAN

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Laws on Labour Rights Issues to work while two leaders lost their jobs.152
According to Article 24, three new laws relating Another thing critics point out is the provisions on
to labour protection have been enacted.146 The registration and the requirement to give notice to
Labour Organization Law of 2011147 was drafted the employer prior to a strike. In case of workers in
based on the ILO Convention No.87 on Freedom a public utility service, notice needs to be given at
of Association. It grants legal rights to a worker to least 14 days in advance under section 38 (a) and in
form and to be a member of labour organizations. case of workers outside of the public utility service
Under articles 18 and 44 (d), workers’ freedom of is at least three days in advance under section 39. In
association is protected. However, as Phoe Phyu, addition, applying for registration of a union seems
a lawyer and activist points out, the law does to be a burdensome process.
not provide adequate protection to the rights of
workers in performing organizational activities to Protection against forced labour is provided under
establish a union.148 In some cases, worker leaders the “Law amending Ward or Village Administration
found themselves being dismissed or transferred Act”.153 According to ILO, the definition of “forced
to remote workstations. In such cases, employers labour” under the Act is directly derived from
claimed disturbances at workplace or breach of Article 2 of the 1930 Forced Labour Convention
contracts – even in cases where there was no that Myanmar ratified in 1955. Section 27 (A)
written contract – as reasons for the dismissal.149 criminalizes forced labour and foresees the same
According to the affected workers, the real reason is penalties as section 374 of the penal code pertaining
their role as leaders to initiate and organize unions. to forced labour, which amount to “imprisonment,
Two such cases happened in the ADK garment of either description for a term which may extend
factory in Yangon Region and Aung Sein Factory to one year, or with fine, or with both.”154 The ILO
in Mandalay Region. In both cases, worker leaders Committee noted that these penalties were not
who organized the unions were dismissed.150 In the in line with the Labour Convention, reiterating
case of Aung Sein Factory, workers got their jobs that “the imposition of just a fine or a maximum
back after interventions by labour associations all one-year prison sentence could not be considered
over the country.151 However, in the case of the ADK effective, given the seriousness of the offence
factory, only seven workers were allowed to go back and the dissuasive effect that the penalties should
have”.155The Committee also observed that article
359 of the Constitution of Myanmar still permits
146 Refer to table 1.
147 The Labour Organization Law, The Pyidaungsu Hluttaw
forced labour imposed by the State in the interest
Law No.7/2011, The 14th Waxing day of Thadinkyut 1373, M.E. of the public, which “amounts to a blanket
(11th October, 2011) authorization for the use of forced labour”.156
148 An informal interview with Phoe Phyu, a lawyer and
activists on 23, September, 2012
149 An informal interview Ma Moe Wai, a labour activist on 23, 152 Kyaw Phone Kyaw, “Union-level Tribunal Rules in Labour
September, 2012 Dispute,” Mizzima, August 01, 2012, accessed September 20,
150 Informal Conversation with Ma Moe Wai; “Decision of 2012, http://www.mizzima.com/business/7653-union-level-
Yangon Region on Labour Dispute at ADK Garment Factory,” tribunal-rules-in-labour-dispute.html
The Ministry of Labour, July 17, 2012, accessed September 30, 153 Law amending Ward or Village Administration Act, The
2012, http://www.mol.gov.mm/adk/; “Decision of Mandalay Pyidaungsu Hluttaw Law No.7/2012, The 6th Waxing day of Tagu
Region on Labour Dispute at Aung Sein Factory,” The Ministry 1373, M.E. (8th March, 2012).
of Lbour, July 25, 2012, accessed September 30,2012. http”// 154 ILO, “Report of the Committee on the Application of
www.mol.gov.mm/mm/departments/central-trade-disputes- Standards,” 101st Session of International Labour Conference,
committee/ Geneva, May-June 2012.
151 Informal Conversation with Ma Moe Wai on 23 September 155 Ibid.
2012. 156 Ibid.

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Exploitation of labour is protected under the Anti 2012 Foreign Investment Law, FIL and 2013 FIL
Trafficking in Persons Law of 2005.157 Myanmar Rules
acceded to United Nations Convention against
According to the 2012 FIL Law, foreign investment
Transnational Organized Crime, the Protocol to
is prohibited in business which can affect the
Prevent, Suppress and Punish Trafficking in Persons
traditional culture and customs of the national
especially Women and Children, the Protocol
ethnic groups within the Union; business which
against the Smuggling of Migrants by Land, Sea and
can affect the public health.163 These two provisions
Air, supplementing the United Nations Convention
indicate that the state has acknowledged that
against Transnational Organized Crime on 30
they have to prohibit potential abuses of right to
March 2004. In compliance with the UN Trafficking
health and right to cultural practices by businesses
Protocol, the Anti-Trafficking in Person Law of
specifically foreign and joint venture investments.
2005 covers all aspects of trafficking, including
Although the law does not explicitly mention that
trafficking in men, women and children, domestic
the state has the duty to protect the above mentioned
and international trafficking, and trafficking for all
rights against abuses by businesses, the criteria for
forms of exploitation.158
allowing foreign investment can be regarded as an
Under section 11 and 12, dignity, physical and mental implicit protection mechanism provided by the
security of women, children and youth trafficked state. Article 126 of the 2013 FIL law also contains
survivors are protected. Section 16 provides special provisions to protect farmers from being evicted or
protection of women, children and youth survivors relocated forcedly without consent as the result of
and the necessary assistance.159 However, under land concession to foreign and local joint ventures.
section 13(b) of the Anti-Trafficking in Persons Law
(2005), it is stated that the Law “shall determine
2. Has the State Duty to Protect been recognized
whether or not it is appropriate to take action
by the State’s courts?
against the trafficked victims for any other offence
arising as direct consequences from trafficking No information is available whether the court has
in persons.”160 It shows limited protection since already recognized or applied some aspects of a
trafficked survivors might be prosecuted with state duty to protect. See more in Section III, No.1
trafficking related offences such as prostitution.161 on “Court.”
Prostitution is illegal in Myanmar and punishment
is 1-5 years in prison, with the liability of a fine.162

157 The Anti Trafficking in Persons Law, The State Peace and
Development Council Law No. 5/ 2005, The Waxing Day of
Tawthalin, 1367, M.E., September, 2005
158 Fiona David, “ASEAN and Trafficking in Persons: Using
Data as a Tool to Combat Trafficking in Persons,” IOM, 2006, p.
86; Gerard Smith, “The Criminal Justice Response to Human
Trafficking.”
159 2005 Anti Trafficking in Persons Law, Section 11, 12 and 16.
160 UNIAP (2010, 60-63) cited in Gerard. Smith, “The Criminal
Justice,”p. 11; CEDAW, “Second and Third Periodic Reports of
the State Party,” para. 83, subsection e.
161 Gerard. Smith, “The Criminal Justice,” p. 11.
162 Burma Lawyers’ Council and Human Trafficking cited in
Human Rights Foundation of Monland (HRFM), “Report: Why
Burmese Women Become Sex Workers,” 2009, accessed January
5, http://rehmonnya.org/archives/1156. 163 2012 Foreign Investment Law, Article 4.

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III. Is the State taking steps to prevent, investigate, the Yangon Division.166 The committee undertook
punish and redress business-related human fact-finding trips to investigate the country’s
rights abuses through effective policies, judicial system. It recently pointed out that the
legislation, regulations and adjudication? executive branch still dominates the judiciary
which is in contradiction with the provision of the
1. Are there government bodies and/or State 2008 Constitution that establishes the separation of
agencies that have the responsibility to powers.167
prevent, investigate, punish and redress
business-related human rights abuses? If so, Myanmar National Human Rights Commission
how have they done so? (MNHRC)
The Myanmar National Human Rights Commission
Court (MNHRC) was established on 5 September 2011168
Under the Union Judiciary Law (2000), the Supreme by Notification No.34/2011 of the Government of
Court, State and Divisional Courts, District Courts, the Republic of the Union of Myanmar.169 There is
Township Courts and other law courts were no legal framework for its foundation; hence, the
formed. Since the inception of the new government, Commission is currently in the process of drafting
in accordance with the Section 293, Chapter 6 of its founding legislation.
the Constitution, the Supreme Court of the Union, MNHRC has received over 1700 complaints in the
High Courts of Regions, High Courts of the State, first six months of its operations and the majority of
Courts of Self-Administered Divisions, the Courts cases concerned land grabbing.170 The Commission
of Self-Administered Zones, District Courts, and cannot punish and redress human rights abuses
Township Courts were established. The Supreme including business related ones. The Commission
Court is the highest organ of judiciary and the final can investigate complaints raised by citizens
court of appeals for the decisions, judgments and and contact the concerned person, company or
orders of the lower courts. The Courts adjudicate government department to take action.171 If those
criminal and civil cases under the provisions of who committed human rights abuses do not adhere
the Criminal Procedure Code, the Civil Procedure to MNHRC’s recommendation, a letter can be sent
Code and the Evidence Act. to the president advising him to take action.
166 Lawi Weng, “Rule of Law Probe Inspects Rangoon Courts,”
Especially throughout the former military regime, The Irrawaddy, September 28, 2012, accessed October 3, 2012,
the state judiciary has somewhat lost its reputation http://www.irrawaddy.org/archives/15129.
with regard to impartiality, independence, 167 “Separation of power is still lacking with dominance of the
and accountability, both domestically and executive branch of the government over the judicial branch,”
internationally.164 With the intake of the new WeeklyEleven, Vol 8, No.18, February 6, 2013.(Burmese)
168 “Notification No. (34/2011), Myanmar National Human
government, a Parliamentary Committee, the Rule Rights Commission Formed,” New Light of Myanmar, September
of Law and Stability Committee, was formed on 7 6, 2011, accessed November 10, 2011, http://www.myanmar.
August, 2012.165 Within one month it received over com/newspaper/nlm/.
10,000 complaint letters relating to courts within 169 Presentation by U Win Mra, Chairman of the Myanmar
National Human Rights Commission http://www.iseas.edu.sg/
myan_forum/Win%20Mra.pdf
170 MNHRC cited in the Asian Legal Resource Center (ALRC),
“Myanmar at Risk of Land-Grabbing Epidemic.”
164 Human Rights Resource Centre, “Rule of Law for Human 171 Myanmar National Human Rights Commission, “The
Rights in the ASEAN Region: The Republic of the Union of Republic of the Union of Myanmar: Myanmar National Human
Myanmar,” 2011. Rights Commission Accepting of Complaint,” New Light of
165 See also the Rule of Law and Stability Committee at supra Myanmar, October 6, 2011, accessed November 12, 2011, http://
notes 212-216 and accompanying texts. www.myanmar.com/newspaper/nlm/.

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Without a legal framework, there has been concern workers in Thailand.176

over an independent and effective operation of the
Commission172 and organizations such as the EU, The department of labour encourages adopting
OHCHR, the Asia Pacific Forum and National a systematic employment contract to prevent
Human Rights Institutions (NHRIs) in other disputes between the employer and the employee
ASEAN countries have already initiated programs in industrial settings in the country. Township
to build up the capacity of MNHRC with the Workers’ Supervisory Committees have been
aim of promoting its role in accordance with the formed consisting of an official from the Ministry
development of the country’s political situation.173 of Labour as its secretary, the employer or his or
her manager and the employee.177 Committees have
settled 317 disputes resulting in 2, 540 workers
Ministry of Labour, Employment and Social Security being paid 15.1 million of Kyats.178 According to
the Ministry of Labour’s official website, Township
i) Department of Labour
Workers’ Compensation Scrutiny Committees were
Various departments under the Ministry of Labour formed to settle workplace fatalities and Workers’
have are responsible for protecting labour rights. Welfare Association to look after welfare and
The Local and Overseas Employment Sub-Division grievances of workers and dependents.179
in the Department of Labour is responsible for
migrant workers’ affairs. The Department of Labour ii) The Factories General Labour Laws Inspection
overseas the licensed agencies so that they practice Department
in accordance with existing laws and regulations.
The Factories General Labour Laws Inspection
The deputy labour minister of Myanmar and Department has responsibility for the enforcement
the Myanmar ambassador to Thailand lead the of labour laws and for providing occupational
Protection Committee for Myanmar migrant safety and health training and advisory services.180
workers in Thailand.174 The Committee works with However, critics have noted a lack of systematic
labour protection groups in Thailand 175 According labour inspection mechanisms to prevent, punish
to the government’s data, from10 July 2009 to 28 176 “21st Day Session of Pyidaungsu Hluttaw Held,” The New
February 2011, temporary Myanmar passports and Light of Myanmar. 17 March 2012, accessed March 10, 2012,
identity cards have been issued to 408,160 migrant www.burmalibrary.org/docs13/PYIDH-NLM2012-03-17-
day21.pdf.
177 Human Rights Council, “National Report,”at para.63.
178 Ministry of Labour, http://www.mol.gov.mm/en/
172 “2012 Concluding Observations of the CRC Committee,” departments/department-of-labour/
para.15. 179 According to the official Website of the Ministry of
173 See at Asia Pacific Forum, Myanmar Rights Body Charts Labour, through township Workers’ Compensation scrutiny
Path Ahead, 14 August, 2012 http://www.asiapacificforum. Committees, within the period 1 April 1995 to 14 November
net/carousel/news/myanmar-rights-body-charts-path-ahead; 1997, out of 362 compensation cases, 321 cases were settled
Charile Campbell, “Empowering the Myanmar Human Rights and 177 workers got 1,302,050 kyats as compensation. A
Commission,” The Irrawaddy, May 9, 2012, accessed July 16, total of 2,234 Workers Welfare Association were formed with
2012, http://www.irrawaddy.org/archives/3860. 483,283 members. “Department of Labour, Ministry of Labour,
174 “Burmese migrant (127) received estimated (3) millions Employment and Social Security”, http://www.mol.gov.mm/
Baht for their allowance!,” Democracy For Burma, 2011, accessed en/departments/department-of-labour/ Note: The official
January 10, 2012, http://democracyforburma.wordpress. website lacks information on whether those committees are still
com/2011/10/20/burmese-migrant127-received-estimated-3- in operation or not and analysis on the quality of services they
millions-baht-for-their-allowance/. provide.
175 Nay Thwin, “Burma Appoints Labour Official for Thailand.” 180 “FGLLID Function Ministry of Labour, Employment, and
Democratic Voice of Burma, 2011, accessed January 10, 2012 Social Security,” http://www.mol.gov.mm/en/departments/
http://www.dvb.no/uncategorized/burmese-embassy-in- factoires-general-labour-laws-inspection-dept/fgllid-main-
thailand-appoints- function/

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and redress labour rights abuses effectively.181 2011.185

The Minister of Labour also noted an inadequate
institutional structure to effectively monitor labour The National Committee on the Rights of the Child
rights issues.182 The National Committee on the Rights of the Child
(NCRC) that was formed in 1993 and reactivated
iii) Department of Labour Relations recently after being inactive for a long period,186 is
The central Trade Disputes Committee was responsible for protecting children from human
reorganized as the Department of Labour Relations rights abuses including business related abuses,
in 2012 in order to facilitate dispute settlement such as labour exploitation. State, Regions, District
between the employer or employer organizations and Township level committees were set up and
on the one hand and the worker or the Labour voluntary social welfare officers were assigned in
Organizations on the other hand183 in accordance 10 States and Regions.187 According to the 2012
with the 2012 Settlement of Labour Dispute Law. Concluding Observations of the CRC Committee,
systematic collaboration of different ministries is still
iv) The Supplementary Understanding Mechanism needed to implement child rights protection.188 The
Committee has indicated the need to improve the
The Ministerial Working Group (WG) chaired by sustainability, mandate, resources and effectiveness
the Deputy Minister for Labour, headed by the of the Child Rights Committees. Official assessment
Director General of the Department of Labour and data on the work and impact of these committees in
comprised of officials from related departments, business related cases is not yet available.189
has responsibility to investigate force labour
cases submitted through the Supplementary Land Confiscation Investigation Commission
Understanding (SU) mechanism in coordination The Parliamentary Commission on Land
with ILO. Upon receipt of a complaint the WG Confiscation Investigation was formed on 8 August
instructs the enquiry team to investigate the case 2012. The commission consists of 60 members
and recommend appropriate action to seek for and will last for one year term. The duty of the
legal redress for the victim and punishment for the commission is to investigate land confiscation cases
perpetrator.184 During the former military regime, occurred from 1989 onwards with a particular focus
there were cases reported in which the filing of on the purpose, compensation and compliance with
a complaint led to intimidation, harassment, existing laws190 The Commission has no mandate
prosecution or other form of reprisal or retaliation. to decide on the merits of a case after investigation.
However, there have not been any such cases since Instead, it has to submit its findings to the Parliament
185 U.S Department of State, “2012 Trafficking in Persons
181 Lynn Bo Bo, “Industry Minister Calls for Trade Union Report.”
Support,” Mizzima, 5 June 2012, accessed 20 June 2012, http:// 186 “2012 Concluding Observations of the CRC Committee,”
www.mizzima.com/business/7255-industry-minister-call; see para.11.
also U.S. Department of State, “2010 Country Reports on Human 187 Human Rights Council, “National Report submitted in
Rights Practices: Burma,” p. 47; “2008 Concluding Observations accordance with paragraph 15 (a) of the annex to Human Rights
of the CEDAW Committee,” para.37; “2012 Concluding Council resolution 5/1: Myanmar,” para.46.
Observations of the CRC Committee,” paras. 85and 86. 188 “2012 Concluding Observations of the CRC
182 “21st Day Session of Pyidaungsu Hluttaw Held,” The New Committee,”para.11.
Light of Myanmar. 17 March 2012, accessed March 10, 2012, 189 See also detail in Ministry of National Planning and
www.burmalibrary.org/docs13/PYIDH-NLM2012-03-17- Economic Development and UNICEF, “Situation Analysis of
day21.pdf. Children in Myanmar,” 2012; “2012 Concluding Observations of
183 Ministry of Labour, http://www.mol.gov.mm/en/ the CRC Committee.”
departments/department-of-labour/ 190 See also Food Security Working Group’s Land Core Group,
184 ILO, “Forced Labour Complaint Mechanism,” accessed “Legal Review of Recently Enacted Farmland Law and Vacant,
http://www.ilo.org/yangon/complaints/lang--en/index.htm. Fallow and Virgin Lands Management Law.”

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which will discuss them and submit them to the Committee consists of 12 members including the
President. As of January, 2013, out of about 4’000 Union Minister of Environmental Conservation
cases over 300 have been investigated. 191 Difficulties and Forestry Department. According to the news,
the Commission has to face are unwillingness of the Committee will carry out reviewing existing
local authorities to corporate and poor education of laws on land management, taxation law, regulations
farmers.192 and it is also supposed to cooperate with the
relevant organizations. A local expert welcomes
The Commission started an investigation in Rakhine the formation of committee with the hope that
State in December and found that in most cases land distribution and utilization will be effectively
of land confiscation, families of former military monitored so that it can prevent misuse and abuse
generals were the beneficiaries.193 According in land distribution and utilization.197
to the military, about 4000 acres were returned
and 999.258 million kyats were given for crop The Ministry of Mines
compensation in 2012.194 Out of 280 complaints
sent directly to the military 42 cases were settled. Under the existing mining law, the Ministry
Another 551 complaints sent to the Commission of Mines has the responsibility to ensure that
were also settled. The Commission has encouraged mining operations by businesses do not jeopardize
the military to investigate the cases of land the environment. As mentioned in afore,198 the
confiscated for economic benefits and to take action Ministry of Mines needs to encourage an effective
accordingly. And the chief military officials have implementation of EIA and SIA among businesses
also responded to the request of the Commission by and to cooperate effectively with all the stakeholders
stating that they will continue giving compensation including the other Ministerial departments such
accordingly.195 as the Ministry of Environmental Conservation
and Forestry, civil societies and most importantly
with local people to prevent, investigate and punish
Land Allotment and Utilization Security Committee196
mining related human rights abuses.
A cabinet level Committee on Land Allotment and
Utilization Security was formed within the executive Ministry of Environmental Conservation and Forestry
branch of the government with the purpose of The Ministry of Environmental Conservation
managing land distribution in investment projects and Forestry that was renamed from the Ministry
in accordance with existing laws and policies. The of Forestry in September, 2011 is responsible for
191 Noe Noe Aung, “Commission Will Report Over 300 Land environmental conservation, and in cooperation
Grabs to Myanmar MPs,” The Myanmar Times, December 17- with other relevant Ministries such as the Ministry
23,2012, accessed January 10, 2013, http://www.globalpolicy.org/ of Mines, for preventing environmentally hazardous
component/content/article/217-hunger/52166-commission- behaviour of extractive industries. In the past,
will-report-over-300-land-grabs-to-myanmar-mps-html.
192 Ibid. the Ministry focused only on forest conservation
193 Tun Tun Win, “Land Grabbing Cases of Military and Private and protection and environmentalists urged the
Companies,” Eleven, 08 January 2013, accessed January 30, Ministry to commit more strongly to addressing
2013, http://elevenmyanmar.com/component/article/53-top- environmental issues.199 The newly released Foreign
events-2012/business/2039-land-grabbing-cases-of-military-
and-private-companies; Nyein Zaw Linn, Zin Bo Lwin, “Giving 197 “Land Distribution Management Committee was
Compensation to Farmers For farmed Land Confiscated by the formed for effective land management in investment projects,”
Military,” The Weekly Eleven, Vol 5, No.44, February 1, 2013. Weeklyeleven, No.43, vol.7, August 1, 2012. (Burmese)
(Burmese) 198 See more in “ESIA Implementation.”
194 Nyein Zaw Linn, Zin Bo Lwin, “Giving Compensation to 199 Ei Ei Toe Lwin, “Green Groups Call on Govt to Expand
Farmers For farmed Land Confiscated by the Military.” Ministry Activities,” The MyanmarTimes, September 12-18,
195 Ibid. 2011, accessed July 30, 2012, http://www.mmtimes.com/2011/
196 Ibid. news/592/news59213.html.

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Investment Rules give the Ministry the mandate to According to the notification of the President, if
issue recommendations to the Myanmar Investment necessary, the Commission can appoint scholars and
Commission (MIC) on whether permits should be experts from the related fields and the investigation
granted to businesses in investment projects with can be carried out in accordance with the legal
potential social and environmental risks.200 The procedures such as summoning witnesses, requiring
Ministry has to scrutinize EIA and SIA assessments documents and having field visits. The legal report
conducted by permit applicants as required by the of the Commission was set to be released by 31st
FIL rules.201 January 2013. However, it is not released yet as of 8
February 2013.205
Letpa Taung Inquiry Commission202
The Commission was formed on 3rd Dec 2012 as Parliamentary Committees relating to human rights
the response to the public outcry for action after a protection and rule of law in general206
violent crackdown of protesters in the Letpadaung
The Rule of Law and Stability Committee
Project area in late November. Some of the monks
were severely burned due to the alleged use of The Committee was formed on 7 August, 2012 and
tear gas, water cannons and incendiary devices by its tenure is for one year. The Committee consists
the riot police.203 Protesters have been demanding of 15 members and is chaired by Daw Aung San
the closure of the mine project jointly operated by Suu Kyi.207 One of the duties of the Committee is
China’s Wan Bo Company and the military-owned to oversee “law enforcement among Pyithu Hluttaw
Union of Myanmar Economic Holdings Ltd. (House of Representatives) representatives, judicial
bodies, government employees and the media.”208
After the incident, the official government If the committee concludes that matters need to be
commission was formed and is led by Aung San Suu
followed up, they will have to be submitted to the
Kyi. It includes some MPs, one senior consultant,
Parliament. One of the duties of the Committee is
government officials from the relevant ministries,
to review laws as applied by various government
a member of the Myanmar National Human Rights
departments and to report to the Parliament on
Commission (MNHRC), and three local persons.
The Commission is mandated to investigate whether laws to be repealed and redrafted.
the project is being implemented in accordance The Rule of Law and Stability Committee serves as a
with the international standards for environmental mechanism for the general public to lodge complaints
protection and what the social and environmental
against various government departments. As of 21st
impacts of the projects are. 204
October 2012, the Committee had received 1,700
200 2013 Foreign Investment Rules, Article 42 and 44. complaint letters mostly on judicial and legal matters
201 Article 37, Chapter 5 of the 2013 FIL rules. and land confiscation cases. 209 The Committee
202 “Reforming the Inquiry Commission, Notification of plans to seek cooperation with related ministries to
the President Office of the Union Myanmar, No.95/2012, the
5th Waning of Tazaung Mone, 1374, December 3, 2012,”; The 205 See also, Daniel Schearf, http://www.voanews.com/
President Office, The Union of Myanmar, accessed January content/copper-mine-confusion-tests-burma-democracy-
20, 2013, www.president-office.gov.mm/briefing-room/ leader/1595342.html
notifications/2012/12/03/id-2050. 206 Some of the Committees of the Parliament have some
203 Zarni Man, “Thousands Gather To Mark Copper Mine overlapping tasks.
Crackdown.” The Irrawaddy, January 30, 2013, accessed February 207 “Rule of Law and Stability Committtee,” Pyithu Hluttaw,
3, 2013, http://www.irrawaddy.org/archives/25560. 2012, accessed 11 September, 2012, www.pyithuhluttaw.gov.mm
204 “Reforming the Inquiry Commission, Notification of 208 “Daw Suu to Chair Newly Formed Parliament Committee,”
the President Office of the Union Myanmar, No.95/2012, the Eleven News, 07 August 2012.
5th Waning of Tazaung Mone, 1374, December 3, 2012,”; The 209 “Rule of Law Committee Handling 1,700 Complaints,”
President Office, The Union of Myanmar, accessed January Eleven Myanmar, October 21, 2012, accessed Dec 30, 2012, http://
20, 2013, www.president-office.gov.mm/briefing-room/ elevenmyanmar.com/politics/1020-rule-of-law-committee-
notifications/2012/12/03/id-2050. handling-1-700-complaints.

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respond to those complaints. The Committee plans 2. Are there laws and/or regulations that
to submit its findings on the inspection on courts to hold business enterprises and individuals
the Parliament.210 accountable for business-related human
rights abuses, and are they being enforced?
Committee on the citizens’rights, democracy and
human rights 2.1 To what extent do business enterprises and
The Committee consists of 15 members. Its tenure company organs face liability for breaches of
lasts for one year. The duties of the Committee laws by business enterprises?
include the promotion of citizens’ rights, democracy
and human rights, ensuring citizens’ access to justice 2.1.1 Can business enterprises be held legally
and right to non discrimination, reviewing laws accountable as legal persons?
practiced by the various government departments
and reporting to the Hluttaw for laws to be repealed, In the case of the Union of Myanmar Inland
amended and drafted.211 The Committee also hast Transportation Group (Plaintiff) v. People Service
the power to investigate complaints and appeals of Co.Ltd. (Respondent) (1967),213the court clarified
the public against various government departments that a company is an artificial legal entity, created
and report to the Parliament accordingly. The duty and recognized by law. The court said that the acts
of the Committee is quite similar to the Committee of the managing director bind the company since
of the Rule of Law and Stability Committee. the managing director is appointed to carry out
business on behalf of the company. Consequently,
National Parliamentary Committee on Matters the court decided that the defendant company
regarding Complaints and Appeals of the Public was liable since it had purchased the goods from
The functions of the Committee formed in May, 2012 the plaintiff and it had to pay for the cost of goods
include accepting complaints and appeals from the purchased.
public and sending them to the Union Government
to take appropriate action. The Committee would
then reply to the public in regard with the decision 2.1.2 Do organs of a business enterprise (e.g.
of the Union Government. Within three months, owners - shareholders, partners, proprietors)
the Committee received 1693 complaints mostly face liability when their businesses breach
related to grievances such as treatment of public laws?
servants towards the public, bribery and corruption
involved by police and judicial officers in court cases A law suit was filed by 22 local farmers against six
and land confiscation cases. The complaints related gold-mining companies claiming that the companies
both to the past and the present regime.212 The had contaminated their land with mining discharge
Committee urged the Union Government to handle that contains mercury. 214 The farmers’ petition was
these complaints expeditiously in accordance with made in May, 2012, under Section 55 of the Specific
laws and regulations. Relief Act of 1877, amended in 1954 that allows the
court to issue injunctions in cases involving disputes
210 Ibid.
211 “Committee on Citizens’ Rights, Democracy and Human
Rights,” Pyithuhluttaw, 2012, accessed September 15, 2012, 213 Thein Han, Myanmar Law Digest, 1967, B.L.R (C.C) 484
www.pyithuhluttaw.gov.mm cited in Ma Ma Thant, “Directors’ Duties and Shareholders’
212 “Union Government Needs to Respond to Complaint and Remedies in Myanmar: A Comparative Approach to Reform”
Appeal Letters Expeditiously,” Eleven Myanmar, August 19, 2012, (PhD diss.,The University of Nagoya, 2011).
accessed August 19, 2012, http://www.weeklyeleven.com/index. 214 “Mines Halt Operations as Court Hears Contamination
php?option=com_content&view=article&id=15026:2012-08- Case,” March 24, accessed 25 July, 2012, http://howdyasia.com/
19-06-15-16&catid=42:2009-11-10-07-36-59&Itemid=112. mines-halt-operations-as-court-hears-contamination-case/.

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over property rights.215 In those cases, the managing before sending them abroad.218
directors of the companies were sued as defendants.
Women and Children
Labour laws and regulations such as the 1951
Factories Act and 1951 Leave and Holidays Act states The Social Security Law of 2012,219 and the Leave and
that owners, managers, directors or shareholders are Holiday Act (1952) include provisions on maternity
liable for failing to adhere to provisions provided by benefits and maternity leave. Articles 93 of the 2012
these laws and regulations to protect the rights of Social Security Law penalize employers who fail to
workers regarding leaves and holidays, workplace contribute to the related social security fund and
safety and security measures and health care fund to compensate work related damages, with
measures.216 imprisonment of not more than one year or fine
or both. The Shops and Establishments Act, 1951
does not allow children under 13 years old to work
2.2 Do laws and/or regulations: (a) require at any industrial setting. Regulations imposed by
the Factories Labour Law Inspection Department
business enterprises to avoid causing or
states that child workers older than 13 years are
contributing to adverse human rights
only allowed to work with a medical certificate
impacts through their activities, or to prevent
guaranteeing their ability to work. No work between
or mitigate adverse human rights impacts 6pm and 6am is permissible for them. Child workers
directly linked to their operations, products above 13 years and under 15 years old cannot be
or services, and (b) require individuals to asked to work more than four hours a day. If the
ensure their business enterprises do so? regulations are breached, managers and owners will
be punished with imprisonment for not more than
Labour 3 months or Kyats 500 or both.220
Migrants Workers at Factories, Shops and Establishments
The Law relating to overseas employment aims to within and outside Industrial Zones
curtail malpractice of employment agencies and In accordance with the 1951 Factories Act, measures
ensure that migrant workers receive the rights they to protect workplace safety and security; welfare
are entitled to. Under section 29, any service agent and health care provisions for workers; working
licence holder is punishable with imprisonment hours, day off and overtime payment are adopted.221
for a term extendable to 1 year or with a fine of Labour Inspection officers from the Factories and
Kyats 5,000 or with both in case of violations of
218 “Myanmar to Train Migrate Workers about their Rights,”
any rules, procedures, orders or directives issued Eleven Myanmar, February 12, 2013, accessed February 14, 2013,
under the law relating to overseas employment.217 http://elevenmyanmar.com/business/2445-myanmar-to-train-
Recently, the Ministry of Labour, Employment and migrate-workers-about-their-rights.
219 The Social Security Law, The Pyidaungsu Hluttaw Law
Social Security announced its plan to encourage No.15/2012, The 14th Waxing day of Wargaung 1373, M.E. (31st
employment agencies to educate migrant workers August 2012)
220 Factories and Labour Laws Inspection Department,
215 Ibid. Regulations and Instructions for Factories, Establishments
216 Factories and Labour Laws Inspection Department, and Workstations within and outside the Industrial zone. n.d.
Regulations and Instructions for Factories, Establishments (Burmese) “13 years old and above Child Workers cannot be
and Workstations within and outside the Industrial zone. n.d. asked to work for more than four hours a day,” Business Today, No.
(Burmese) 26, Vol. 2, 13 July, 2012. The imprisonment term is inadequate
217 Law Relating to Overseas employment, The State Peace and and should be amended to curtail child labour exploitation.
Development Council Law No 3/99, The 12th Waning Day of First 221 The 1951 Factories Act; Factories and Labour Laws
Waso, 1363 M.E. (9th July, 1999) Inspection Department, Regulations and Instructions (Burmese).

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Labour Laws Inspection Department are authorized the consent from communities and permission from
to inspect factories as needed. The punishment for the relevant government departments in giving
breach of regulations is 2 year imprisonment in compensations in market rates. Besides, investors
maximum. need to ensure relocation and resettlement of local
people and provide jobs to them in their investment
The 1951 Shops and Establishments Act and its projects.226
rules and regulations also provide working hours,
overtime fee, regular payment of wages for workers
at shops and establishments.222 In case of breaching Environment and Social Protection
such regulations, the punishment is up to 2 year To prevent negative social and environmental impact
imprisonment. assessment, the 2012 Environmental Conservation
Act require governmental departments, organizations
Similarly, the 1951 Leaves and Holidays Act or individuals to conduct environmental and social
provides rights to leaves and holidays for workers at impact assessments for their intended projects and
factories, shops and establishments and in the case of programs.227 According to Article 22, owner or a
breaching laws and regulations, the punishment is 2 responsible person who are in charge of factories,
year imprisonment in maximum.223 workplace or establishments that are identified
by the government as businesses that have risk of
Labour Organizations damaging environment are required to obtain a
The Labour Organization Law (2011) aims to permit. Article 32 states that anyone who breaches
protect the rights of the workers by establishing rules and regulations issued in accordance with the
good relations among the workers or between Environmental Conservation Act 2012 is punishable
the employer and the worker. Under section to up to 1 year imprisonment or fine or both
44, employers cannot “dismiss a worker for his punishments. Article 34 imposes imprisonment from
membership in a labour organization, for the exercise 3 to 5 years or MMK 100,000 to 2,000,000 or both on
of organizational activities or participating in a strike anyone who imports or exports or produces or stores
in accordance with this Law.”224 Any employer who or trades any substance that is restricted due to tits
violates provisions in section 44 is punishable with negative environmental affect. On the other hand,
imprisonment for a term not more than one year or Article 37 gives some businesses of government
a fine not more than Kyats 100,000 or both under departments and individuals an exemption or
section 51. relaxation in observing some provisions of the
Act with approval of the Union government for
Land the benefit of the state and the public. This broad
exemption opens the door for abuses and corruption.
Article 126 of the new Foreign Investment Rules
explicitly prohibits land confiscation and forced The 2013 Foreign Investment Rules require large
relocation by not permitting the lease of land for investment projects to conduct SIA and EIA
the investment purpose if there is objection from assessments.228 The existing Mining Laws and
affected communities.225 The provision also requires regulations have some provisions on preventing
hazardous mining operation.229
222 See more detail for types of relevant workplace at The 1951
Shops and Establishment Acts; Factories and Labour Laws
Inspection Department, Regulations and Instructions (Burmese).
223 The 1951 Leaves and Holidays Act; Factories and Labour 226 Ibid.
Laws Inspection Department, Regulations and Instructions 227 2102 Environmental Conservation Act, Article 7 (13)
(Burmese). Chapter 4.
224 2011 Labour Organization Law, Section 44, Chapter XII. 228 2013 FDI Rules, Article 33, Chapter 5.
225 2013 Foreign Investment Rules, Article 126, Chapter 15. 229 See Implementation of ESIA.

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Other Major Existing Laws and Laws Under

Review Relating to Businesses230
Existing Laws Under Review or Being Drafted
The Myanmar Citizens Investment Law, The State Law The Myanmar Citizens Investment Law, The State
and Order Restoration Council Law No.4/94, the 5th Law and Order Restoration Council Law No.4/94,
Waning Day of Tabaung, 1355 M.E. (31st March, 1994) the 5th Waning Day of Tabaung, 1355 M.E. (31st
March, 1994)
The Myanmar Special Economic Zone Law (MSEZ), The Myanmar Special Economic Zone Law (MSEZ),
The State Peace and Development Council Law The State Peace and Development Council Law
No.8/2011, 8th Waxing day of Partho, 1372, M.E.(27th No.8/2011, 8th Waxing day of Partho, 1372, M.E.(27th
January, 2011) January, 2011)
The Dawei Special Economic Zone Law (DSEZL), The Dawei Special Economic Zone Law (DSEZL),
The State Peace and Development Council Law The State Peace and Development Council Law
No.17/2011, 8th Waxing day of Partho, 1372, M.E.(27th No.17/2011, 8th Waxing day of Partho, 1372,
January, 2011) M.E.(27th January, 2011)
State-Owned Economics Enterprises Law (1989),
The State Law and Order Restoration Council Law
No.9/89, The 10th Waning Day of Tabaung, 1350 M.E)
(13th March, 1989)
The Private Industrial Enterprise Law (1990), The State
Law and Order Restoration Council Law No. 22/90, The
10th Waxing Day of Nadaw, 1325 M.E. (26th November,
1990)
the Promotion of Cottage Industries Law (1991),
The State Law and Order Restoration Council Law
No.13/91, The 2nd Waxing Day of Thadinkyut, 1353
M.E. (10th October, 1991)

One of the basic principles of the Private Industrial with a fine from a minimum of Kyats 5,000 to a
Enterprise Law (1990) is avoiding or reducing maximum of Kyats 10,000. In the case of a medium
environmental pollution.231 Duties and powers enterprise, the fine starts with Kyats 10,000 and goes
of Supervisory Body which has a responsibility up to a maximum of Kyats 20,000. In the case of a
to grant or terminate the registration of private large enterprise, the fine starts at Kyats 20,000 to a
industrial enterprises include ensuring that private maximum of Kyats 50,000.233 If enterprises violate
industrial enterprises do not cause harm to public the rules and regulations issued by the Ministry of
health in the vicinity of their operations, avoid Industry and the Director General of the Directorate
environmental damage and pollution, and ensure of Regional Industrial Co-ordination and Industrial
workplace safety.232 If private industrial enterprises Inspection, actions will be taken such as warnings,
operate without registration, in the case of a small payment of damages and suspension or cancellation
scale private industrial enterprise, it is punishable of registration.234 There is no specific provision on
230 The list is not exhaustive and specifically includes laws
prohibiting environmental damage or negative
mostly related to human rights impact. human rights impacts in the 1989 State Owned
231 1990 Private Industrial Enterprise Law, Section 3. Chapter
II. 233 Ibid., Section 28, Chapter XIII.
232 Ibid., Section 11 (c), Chapter V. 234 Ibid., Section 30, Chapter XIII.

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Economic Enterprises Law. pollution and air pollution in respect of his

enterprise.”239 However, the law does not provide
The 2011 Myanmar Special Economic Zone Law an enforcement mechanism or any penalties for
(MSEZ) has been amended and approved by the violation of these duties.
Parliament in order to improve compliance with
international standards for both local and foreign Management Committees of the MSEZ and DSEZ
firms235 A Draft for a Common Industrial Zone Law are required to inspect and supervise businesses
is also under way. Its goal is to streamline working to ensure the rights of employees, technicians and
procedures of all industrial zones including Thilawa, staff in accordance with existing labour laws and
Kyaukphyu and Dawei special economic zones regulations including minimum wages, bonus, leave,
across the country. holiday, overtime fees, compensation for dismissal
and workers’ compensation etc. .240 The Committees
The 2011 MSEZ and DSEZ contain some provisions are required to serve as mediators facilitating
on environmental protection and labour rights. settlements in disputes between employers and
Section 8 (g) of MSEZ states that the State will employees, technicians or staff.241
encourage businesses to conserve and protect the
natural environment. Accordingly, the functions
and duties of the Management Committees236 2.3 To what extent, how, and by whom have
of MSEZ and DSEZ include supervising and the laws and/or regulations identified in
inspecting environmental conservation, waste Question 2 above been enforced by the State?
control, health, education, and security.237 DSEZ
Labour Issue
law requires the Management Committee to
scrutinize the disposal system of industrial wastes Employment Agencies
and ensure that the developer or investor performs In 2008, the Department of Labour warned 110
in conformity with the stipulations.238 Both MSEZ licensed employment agencies that used clandestine
and DSEZ Laws require the developer or investor to methods in sending female migrants abroad that
take “responsibility for not causing environmental they could lose their license or face imprisonment.
235 “Parliament to Review Amended Law on Economic Zones,”
242
In 2011, altogether 14 overseas employment
Eleven Myanmar, January 11, 2013, accessed January 30, 2013, agencies that violated licenses’ provisions were
http://elevenmyanmar.com/politics/2086-parliament-to- terminated and in a total of 17 cases, brokers sent
review-amended-law-on-economic-zones. workers overseas illegally and they were charged
236 It is not clear who will serve on the committee of MSEZ. in accordance with the laws.243 On the other
There is no provision as such except the provision that the central
body will form the Central Working Bodies and Management hand, according to some news, Myanmar agents
Committees with the approval of the Government. The Central reportedly sent underage maids to Singapore244
Body will also be formed by the Government with a suitable
person as Chairman and suitable persons from the relevant 239 Section 34, Chapter VI, MSEZ Law; Section 31, Chapter VI,
ministries, Government departments and organizations as DSEZ Law
members (Article 9 (a), Article 10c). Under article 9 (3) of 240 Section 48, Chapter XI, MSEZ Law; Section 47, Chapter XI,
the DSEZ Law, the Management Committee consists of the DSEZ Law
Chairman, and the Secretary and the Joint-Secretary from 241 Section 48 (c), Chapter XI, MSEZ Law; Section 47 (c),
the stipulated government departments and organizations Chapter XI, DSEZ Law
for enabling to carry out the duties contained in the Law. The 242 Irrawaddy cited in NCGUB, “The Situation of Migrant,” p.
Chairman is determined as the level of Union Minister. There 977.
will be a representative from the Government of the Tanintharyi 243 “Minister for Labour Responds to Question of Dr Myat
Region in the Committee. Nyana Soe,” accessed June, 10, 2012, http://www.burmalibrary.
237 Section 13 (c), Chapter IV, MSEZ Law, Section 10 (c), (j), org/docs12/PYIDH-NLM2011-03-migrant_workers-29.pdf.
Chapter IV, DSEZ Law 244 Amelia Tan, “Myanmar Agents Send Underage Maids,” The
238 Section 10 (j), Chapter IV, DSEZ Law Strait Times, July 23, 2012.

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and some officials in Myanmar were alleged to help As in the example mentioned afore,249 some worker
forged the age of such maids in their passports.245 leaders who started organization activities for
forming a union were dismissed at two factories.
Child Labour According to the procedure mentioned in the
Settlement Dispute Act of 2012, when the case could
During an inspection of factories in Hlaing Tharyar not be settled by the Conciliation Body, the case
Industrial Zone, the Departement of Factories and was lodged at the Dispute Settlement Arbitration
Labour Laws Inspection found 47 child workers Body250 which consists of workers’ representatives,
under the age of 13 .246 According to the news, employers’ representatives and personnel from the
children were asked to leave the job and given a Ministry of Labour. The Arbitration Body upheld
salary and compensation. However, no information the dismissal.251 According to Ma Moe Wai, a
on whether and what actions were taken against the labour activist and Phoe Phyu, a lawyer and activist,
employers is available. A key problem lies in the worker representatives have little voice in those
fact that child labour will not simply disappear by bodies. Such cases prompted an action from labour
asking children to leave their jobs even if they are activists to ask the ILO for assistance in effectively
being paid and compensated. In fact, the situation implementing the new labour laws. According
may worsen because some of these children will be to the ILO technical adviser, the ILO has plans to
forced into street begging and eventually leave them organise trainings on new Laws for the relevant
more vulnerable to international trafficking. Only parties including employers and importantly to the
a twofold action plan which aims at addressing Dispute Settlement Arbitration Body.
poverty as the root of the problem on the one hand
and prosecuting and punishing the employers For the implementation of other labour laws,
that benefit from exploitative child labour. Many please see the section on the Ministry of Labour,
children need to work in order to contribute to Employment and Social Security.252
their family income but they also have a right to
education. Providing them with access to schools
Environmental and Social Impact Assessment
while they can still work is therefore essential.247
Please refer to the section on “ESIA
Implementation”253. Recently the government
Labour Organization and Dispute Settlement
announced that an environmental impact
New labour laws still need to be enforced although assessment, EIA for Yangon Region’s Thilawa
there are altogether 396 basic workers’ associations, Special Economic Zone is going to be conducted
17 basic employers’ associations, four township with the lead of Japan in one month’s time.254 The
workers’ associations, one workers’ federation and Thilawa Special Economic Zone will cover 2,400
one employers’ federation as of February, 2013.248 249 Supra notes. 151 to 154 and accompanying texts.
245 Ibid. 250 The Dispute Settlement Arbitration Body was formed
246 “13 years old and above Child Workers cannot be asked under the Trade Dispute Act, 2011 consisting of the government
to work for more than four hours a day,” Business Today, No.26, officials, employer and worker representatives.
Vol.2, 13 July, 2012. 251 An informal interview Ma Moe Wai, a labour activist on 23,
247 Aung Mint Htwe, “Challenges of New Generation that have September, 2012 and the accompanying texts at Section II, No.1.
been far away from school bells,” The Voice, No.35, September 252 See notes 175-186 and accompanying texts at Section III,
3-9,2012. No.1.
248 The Ministry of Labour, “Workers’ Federation, Employers’ 253 See notes 121-130 and accompanying texts.
Federation, Basic Workers’ Associations and Basic Employers’ 254 “Officials Ready to Move on EIA for Massive Economic
Associations.” accessed February 5, 2013, http://www.mol. Zone,” Eleven Myanmar, January 25, 2013, accessed January 31,
gov.mm/mm/wp-content/uploads/downloads/2013/01/Org- 2013, http://eversion.news-eleven.com/business/2242-officials-
List24-1-2013.pdf. ready-to-move-on-eia-for-massive-economic-zone.

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hectares and will cost an estimated US $ 12.6 4.1.1 What are the general legal due diligence
billion. However, at this point in time, three villages obligations that directors have to comply
and approximately 200 acres of farmland around with?
Thilawa SEZ are threatened by forced evictions
requiring the villagers to leave within 14 days. The Myanmar Companies Act 1914 was modelled
According to a government official, the land had on the UK Companies Act 1908 which had “no
been taken by the government from the villagers provision specifically articulating directors’ duties
“with fair compensation” many years ago.255 or providing for minority shareholders’ remedies.”257
Although the Company Act has been updated several
times, the core provisions related to directors’ duties
3. Is the State periodically assessing the adequacy and minority shareholders’ remedies have remained
of the laws and/or regulations identified in unchanged. Since detailed directors’ duties are not
Question 2 above, and addressing any gaps? specifically codified in Myanmar, the sole source of
law governing directors’ duties is case law. In this
As mentioned earlier, Myanmar is in a transition regard, the case law is not sufficiently developed.
period emerging from a decade long authoritarian
rule. It is currently in the process of reviewing its Although there are some specific provisions
existing laws and drafting, consulting and enacting regulating particular behaviours that fall within
new laws related to labour rights, land rights the general ambit of fiduciary duties such as the
and environmental protection. Parliamentary regulation of loans to directors and the disclosure
Committees and Commissions such as the of conflicts of interest, broader provisions related to
Committee on the citizens’ rights, democracy and fiduciary duties are absent both in the Company Act
human rights, the Rule of Law Committee; the and case law.258
Commission on Assessment of Legal Affairs and
special cases have all mandates related to assessment The general law governing directors’ duties is
of law, rules and regulations and their relevance mainly found in a very limited body of case law.
with the current situations of the country.256 Specific provisions that obligate directors to act
in the interests of shareholders rather than their
own self-interests can be found in the company’s
4. Is the State using corporate governance memorandum and articles of association and
measures to require or encourage respect for the Myanmar Companies Act.259 The articles of
human rights? association also known as Table A are applied to all
companies public and private under the Myanmar
4.1
Is the State requiring or encouraging Companies Act.
directors of business enterprises to exercise
due diligence in ensuring that their business Specific provisions relating to the duty of directors
enterprises respect human rights? are not tantamount to more general directors’
duties, and they are specifically tailored to
No information as such so far. particular types of behaviours or situations.260 The
255 Noe Noe Aung, “Impending Evictions Taint Thilawa Act requires directors to hold a specific amount
Economic Zone,” Myanmar Times, February 17, 2013, accessed
February 11, 2013, http://www.mmtimes.com/index.php/ 257 Ma Ma Thant, “Directors’ Duties and Shareholders’
national-news/4046-impending-evictions-taint-thilawa- Remedies in Myanmar: A Comparative Approach to Reform”
economic-zone.html. (PhD diss.,The University of Nagoya, 2011).
256 “Committees and Commissions,” Pyithuhluttaw, 2012, 258 Ibid, p.19.
accessed September 15, 2012, http://www.pyithuhluttaw.gov. 259 Ibid. p.20.
mm/committees. 260 Ibid. p. 21

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of shares in the company to qualify as a director 4.1.4 Have any of the directors’ duties identified
and in the case of failure to do so, the liability is a above been enforced by the State in relation
fine.261 A direct conflict of interest is prevented by to business-related human rights abuses?
restricting a company to make a loan to one of its
directors in the case of public companies.262 In case
of failure to comply with the rule, there is a fine not 4.1.5
Has the State provided non-binding
exceeding five hundred kyats and the director will guidelines encouraging directors to take
be disqualified. . A director is required to make a into account (a) their businesses’ human
general disclosure of interests in any transaction rights impacts in carrying out their duties,
entered into by or on behalf of the company. If the and/or (b) the human rights impacts of
provision is contravened, directors are liable to a subsidiaries, suppliers and other business
fine not exceeding one thousand kyats.263 However, partners, whether occurring at home or
there are no more detailed statutory provisions or abroad (supply chain)?
extensive case law to guide enforcement of these No information.
provisions enforceable.264 Every company has to
maintain books of account in Myanmar or English
and if any director or directors contravene the 4.2 Does the State require or encourage business
provision, they are liable to a fine not exceeding enterprises to communicate their human
one-thousand kyats.265 rights impacts, as well as any action taken to
address those impacts?

4.1.2 Do directors have specific legal obligations No information.

to consider their business enterprises’
human rights impacts in carrying out their
4.3
Is/are the country’s stock exchange
duties?
regulator(s) taking steps to require or
No information as such. encourage business enterprises listed on the
stock exchange to respect human rights? If so,
what are these steps?
4.1.3 Do directors have specific legal
obligations to take into account the human rights No stock exchange yet.
impacts of subsidiaries, suppliers and other
business partners, whether occurring at home or 5. Has the State adopted other non-binding
abroad (supply chain)? measures to foster corporate cultures
respectful of human rights?
No information as such.

5.1 Is the State implementing any non-binding

261 The Myanmar Companies Act 1914, Schedule I, Table A, initiatives requiring or encouraging business
art. 70 cited in Ma Ma Thant, “Directors’ Duties.”
262 The Myanmar Companies Act 1914, s.86D cited in Ma Ma enterprises to respect human rights?
Thant, “Directors’ Duties.”
263 The Myanmar Companies Act 1914, s.91A (1) and (2) cited As part of economic reform of the new
in Ma Ma Thant, “Directors’ Duties.” government, workshops and fora on corporate
264 Ma Ma Thant, “Directors’Duties,” p. 24. social responsibility, Green Economy and Green
265 The Myanmar Companies Act 1914, s. 130 and Schedule I,
Growth were held with the support of the Hanns
Table A, art. 105.

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Seidel Foundation (HSF). International experts internationally and express their political will and
and the government agencies such as the Ministry commitment to help foster responsible investment
for Environmental Conservation and Forestry and practices in Myanmar.
business organizations including the UMFCCI
participated.266 The UN launched the UN Global The government recently established an EITI
Compact (UNGC) in Myanmar on 1 May 2012 (Extractive Industry Transparency Initiative)
and the UMFCCI and 14 other local Myanmar leading authority, with the aim of developing good
companies signed the UNGC charter.267 investment environment; better management of
extractive industries and “create opportunity for a
HSF signed an MOU with UMFCCI to increase frank and transparent discussion between private
capacity building efforts for the creation of a better investors and the people and join hands with the
business environment, enhance knowledge sharing public-based societies of the private sector so as to
and targeted grassroots level development.268 be able to affectively deal with the tasks of extractive
With the cooperation and support of the HSF, the industry transparency initiative on behalf of the
Ministry of Hotel and Tourism promote responsible State.”270
tourism aiming to encourage every travel company,
operator, hotel and destination to take action not
only for the sustainability of tourism but also not to 5.2 Is the State providing guidance to business
have a negative impact on the communities.269 enterprises on how to respect human rights
throughout their operations?
With the facilitation of the British Government,
the government of Myanmar participated in a No information.
workshop around the UN Guiding Principles
and their application to Myanmar. The workshop
was jointly held by the Institute of Human Rights 6. Is the State taking steps to require or
and Business in London, the French Delegation encourage business respect for human rights
and the UK Trade Delegation. The chairman of in its own relationships and dealings with
the Myanmar Investment Commission and some businesses?
economic and political advisers of the government
attended workshops held by the IHRB on responsible
investment measures both domestically and 6.1 Does the State require or encourage State-
owned or controlled business enterprises to
266 “Workshop Enhances Integration of Corporate Social
Responsibility in Myanmar’s Economic Development,”
respect human rights?
accessed July 30, 2012, http://www.hss.de/southeastasia/en/ Although the State has not adopted measures
myanmar.html; “First Green Economy and Green Growth
Forum in Myanmar,” accessed July 30, 2012, http://www.hss. that require State-owned Economic Enterprises
de/southeastasia/en/myanmar/news-events/2011/first-green- to conduct human rights due diligence or human
economy-and-green-growth-forum-in-myanmar.html. rights impact assessment, the new government
267 “Launch of the UN Global Compact in Myanmar,” accessed
has taken some initial steps to curtail malpractices
July 27, 2012, http://www.csrsingapore.org/c/resources/
newsletters-archive-2012/archive/view/listid-1-mailinglist/ related to SOEs during the former military regime.
mailid-22-may-2012. During the military government, SOEs mostly in the
268 “Memorandum of Understanding signed with Union of extractive industries and some other sectors were
Myanmar Federation of Chambers of Commerce and Industry,”
accessed July 30, 2012, http://www.hss.de/southeastasia/en/ 270 “Formation of Extractive Industry Transparency Initiative
myanmar.html. Leading Authority, President Office, Republic of the Union of
269 “The Draft Responsible Tourism Policy for Myanmar Myanmar, Notification No 99/2012, 1st Waxing of Nadaw, 1374
Formulated Successfully,” accessed July 30, 2012, http://www. ME(14th December, 2012),” The New Light of Myanmar, Vol.XX,
hss.de/southeastasia/en/myanmar.html. No.239, December 15, 2012.

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alleged for their lack of transparency, corruption health and education and the fundamental rights of
and lack of adequate measures to prevent or reduce children’s access to education and health has been
negative impact of joint venture business enterprises violated. For instance, for years, only 1.3 per cent
on local communities and the environment.271 In of the government budget was spent on education
spite of some remaining shortfalls, initiatives taken while about 25 per cent was allocated to the armed
by the current government include starting the forces.275 Although the budget for education was
EITI membership application process, measures increased in April, 2012 from $ 340 million to $740
to eradicate corruption and the newly introduced million, it is still criticized as inadequate.276
requirement for ESIA assessments.
According to the IMF, the military regime did
not accurately include gas revenue in its national
As part of the economic reform process, the budgets by using old official exchange rate of 6
government plans to sign up to the Extractive Kyats per dollar.277 In 2008, the annual Yadana
Industries Transparency (EITI) standards.272 EITI Project income was estimated at US $ 1.7 billion in
will enable people to be in a position to hold the of which, an estimated US $ 1.02 billion reportedly
government accountable for the management went directly to the military regime without being
of resources and revenues overseen by a multi- used for the public.278 Revenue was reportedly
stakeholder group of government, companies kept in two leading offshore banks in Singapore.279
and civil society.273 Better management in natural However, the current government made its gas
resources is highly related to the government’s revenue public it amounts to US $800 million from
capacity to protect social and economic rights of April 1 to July 13 of the 2012-2013 fiscal year. 280
its citizens. In the case of Myanmar, transparency
in the government’s income from the extractive A second initiative adopted by the government is
industries can pave the way to better allocation of the eradication of corruption practices and bribery
those revenues and can help increase expenditure in governmental organizations. The government
on basic necessities for development such as health recently organized an Action Committee against
and education.274 Corruption with the vice president as Chairman
and including union members, the Union Attorney
During the former regime, proceedings and revenues
General and a legal advisor to the President as
from SOEs were not made public especially in oil and
gas sector. Presumably, revenue lost has occurred
and it has negative effect on revenue allocation.
Consequently, the former regime spent very little on
271 See notes and accompanying texts under “Oil and Gas.” ; also
notes and accompanying texts under “ESIA Implementation.”
272 See note 131-132 and accompanying texts about EITI. EITI
mechanism requires companies and governments to disclose 275 “Myanmar Pays Price for Lost Generation of Educated,”
payments for natural resources through an EITI report, where tax Associated Press, June 28, 2012, accessed September,30, 2012.
and royalty payments are independently verified and reconciled. www.foxnews.com/world/2012/06/28/myanmar-pays-price-
273 “Govt Gives Positive Signals on EITI,” The Myanmar Time, for-lost-generation/
July 24, 2012, accessed July 30, 2012, http://www.shwe.org/news- 276 Ibid.
update/govt-gives-positive-signals-on-eiti/. 277 Confidential Report of IMF received by ERI, cited in “Total
274 Revenue allocation is not part of the EITI’s requirements. Impact,” p.42,43.
Critics also raised concern over the government’s ability to 278 Earth Rights International (ERI), “Total Impact.”p.42, 43.
effectively create a functional, independent multi-stakeholder 279 Ibid.
group to oversee the EITI process. (Kate Kelly, “Burma Set To Join 280 “Myanmar Estimates US $ 800M From Gas Revenue,”
Transparency Initiative,” July 18, 2012 accessed July 30, 2012, Eleven News, July 25, 2012, accessed August 11, 2012, www.
http://www.dvb.no/news/burma-set-to-join-transparency- elevenmyanmar.com/business/383-myanmar-estimates-us-
initiative/22942). 800m-from-gas-revenue.

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members.281 At the third Planning Commission Meeting basic

framework for economic and social reforms
Although the 1989 State Owned Economic were approved on 26th Dec, 2012. The Committee
Enterprise Law has no provision on EIA and SIA, emphasized the need to conduct ESIA in
it has become the policy of the new government implementing industrial zones and urbanization.283
to conduct them. According to the Nay Pyi Taw New environmental law and foreign investment
Accord for Effective Development Cooperation rules also require investments and development
presented to development partners by the Minister projects to adopt ESIA practices.284
of National Planning and Economic Development
and approved at the First Myanmar Development 6.2
Does the State require o­ r encourage
Cooperation Forum in Nay Pyi Taw on 20th of businesses that receive substantial support
January 2013, adequate ESIA needs to be undertaken and services from State agencies (“beneficiary
and designed and delivered development activities enterprises”) to respect human rights?
need to be in line with the result.282
The government has recently formed the Central
Committee and the Work Committee for
281 “Organizing Action Committee against Corruption, development of small and medium enterprises.285
Notification of the President Office of the Union Myanmar,
No.9/2013, the 11th Waning of Nadaw, 1374 ME, January 8, SMEs will be receiving support and services from
2013,”; The President Office, Republic of the Union of Myanmar, the government and private banks. The Committee
accessed January 20, 2013, www.president-office.gov.mm/ and Work Committee are assigned to formulate and
briefing-room/notifications/2013/01/09/id-1377.
promulgate laws, regulations and procedures for
After a few days of its formation, complaint letters were sent
SMEs development. It remains to be seen whether
to the committee against the custom department under the
Ministry of Finance and Revenue. The allegation said that SMEs are required to comply with the international
cumbersome customs procedures and corruption practices have standards and codes and conducts to respect human
triggered grievances to the public and sustaining heavy losses of rights.
the government revenue. (“Please Tell the President that now is
the Best Time to Start Handling Bribery and Corruption Cases,”
Eleven Myanmar, January 30, 2013, accessed January 31, 2013, 6.3 When services that may impact upon the
http://elevenmyanmar.com/national/2294-an-interview-on- enjoyment of human rights are privatized,
bribery-and-corruption-of-myanmar-customs-department.)
is the State taking steps to ensure that the
Other complaints are related to red tape and inconsistent
procedures of the department that foster corruption and put business enterprises performing these
small and medium businesses at a disadvantage. Meanwhile big privatized services respect human rights?
businesses including cronies and joint venture businesses have
allegedly got exemption from custom duties with the permission Myanmar is in the privatization process and has
of the Myanmar Investment Commission (MIC) gaining a plans to increase the role of the private sector in
comparative advantage. “(Red Tape procedures of the Custom industries such as telecommunication, energy,
Department foster Corruption Practices putting small and forestry, education and health. There is political
medium import businesses at a disadvantage,” Bi Weekly Eleven,
No.43, Vol.5, January 25,2013 (Burmese). 283 “Industrialization is a Must to Improve Economic
Exemption is granted from customs duty on machinery and Performance of the Nation,” The New Light of Myanmar, Vol XX,
other capital goods imported as part of operation under the 1988 No.252, December 28, 2012.(Burmese)
foreign investment policy. Most of the policy framework remains 284 See notes and accompanying texts under “ESIA Legal
are the same under the 2013 foreign investment policy. Most of Framework.”
the foreign investments are Joint Venture businesses operating 285 “Formation of Central Committee and Work Committee
large projects with SOEs or large private investors.) for Development of Small and Medium Enterprises, No.11/2013,
282 “Nay Pyi Taw Accord for Effective Development the 12th Waning of Nadaw, 1374 ME, January 9, 2013,” The
Cooperation,” The President Office, The Union of Myanmar, President Office, The Union of Myanmar, accessed January
accessed January 30, 2013, www.president-office.gov.mm/en/ 20, 2013, www.president-office.gov.mm/en/briefing-room/
briefing-room/announcements/2013/01/29/id-1493. notifications/2013/01/03/id-1382.

280 Business and Human Rights in ASEAN

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will to improve the privatization process. For procurement, have been developed.290 However,
instance, with the support of Swedish International according to the Nay Pyi Taw Accord for Effective
Development Cooperation Agency, SIDA, the Development Cooperation approved at the First
Ministry of National Planning and Economic Myanmar Development Cooperation Forum in Nay
Development held a workshop on “Privatization Pyi Taw on 20th of January 2013, the government
Process” in mid- October 2012. Civil society also stated its policy commitment to strengthen public
had an opportunity to provide their input to the administration by enhancing the transparency
process. and effectiveness of government programs and
foreign assistance.291 The government said misuse
A new Privatization Commission led by the vice-
president was set up and tasked to evaluate privatized of development cooperation will be prevented by
enterprises as to whether they promote national improving public procurement and implementing
interests and to report their pros and cons to the the anticorruption law. Laws and regulations
higher bodies concerned.286 On the other hand, that prohibit government corruption in public
privatization process is still subjected to criticism procurement include the Penal Code,292 the
due to lack of transparency and it is reportedly Suppression of Corruption Act (1948), the Control
beneficial mostly to crony businesses.287 Most of of Money Laundering Law and Rules and the Public
the privatised services lack is not regulated by law, Property Protection Act.293
except for the Private School Registration Act.288
Although the Act provides clauses for assurance
of quality education, boarding and monitoring
mechanisms, there is no provision related to equal
right to quality education for both the poor and the
rich.289

6.4 Does the State require or encourage respect 290 A paper on corruption control in public procurement
for human rights in carrying out public presented by an official of the Attorney General office of Myanmar
procurement? in 2008, includes a sample of “Invitation to Tender” advertised in
dailies by the government ministries and departments. Although
Until this point in time, no policy guidelines specifics are given in the advertisement such as the name of
that promote respect for human rights in public the government agency, the items that will be purchased, the
quantity of the items, tender closing date, tender documents
286 Min Thiha Zaw, and Kyaw Thura, “Privatized Enterprises that are required and other details, there is no information on
in National Interests,” Eleven Myanmar, July 30, 2012, accessed conditional requirements that contractors comply with such
August 8, 2012, http://eversion.news-eleven.com/index. as environmental, social and governance standards. (Phyu
php?option=com_content&view=article&id=1004:privatiz Mar Wai,”Corruption Control in Public Procurement,” (paper
ed-enterprises-in-national-interests&catid=42:weekly-eleven- presented at second regional seminar on Good Governance for
news&Itemid=109. Southeast Asian Countries, Bangkok, July 23-25, 2008), p. 87);
287 “Privatization Schemes Fuelling Inflation and Mistrust, See also Tender advertisement in “Open Tender from Public
Business People Say,” Eleven Myanmar, January 16, 2013, Construction Work, Tanintharyi Region,” MyanmarAlinn Daily,
accessed January 30, 2013, http://elevenmyanmar.com/ Vol.52, No.134,February 11, 2013.
business/2144-privatisation-schemes-fuelling-inflation- 291 “Nay Pyi Taw Accord for Effective Development
and-mistrust-business-people-say.”; See also Jason Szep and Cooperation,” The President Office, The Union of Myanmar.
Andrew R.C. Marshall, “Special Report: An Image Makeover 292 Section 162 to 165 of the Penal Code provides that offence
For Myanmar Inc.,” Reuters, April 12, 2012, accessed Oct 7, 2012, of bribery and corruption committed by public servants is
www.reuters.com/article/2012/04/12/us-myanmar-cronies- punishable with a maximum of three years imprisonment.
image-idUSBRE83BOYU20120412 293 The Control of Money Laundering Law, The State Peace and
288 The Private School Registration Act, Pyidaungsu Hluttaw Development Council Law no.6/2002, The 7th Waxing Day of
No.14, The 7th Waxing Day of Nadaw, 1373, December 2, 2011. Nayon, 1364 M.E. June 17, 2002; The Public Property Protection
289 Ibid. Act (1947), Burma Act LXXXIII, December 24,1947.

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7. Is the State taking steps to support business Since the inception of the new government,
respect for human rights in conflict-affected significant efforts have been made to foster peace
and high-risk areas? talks with insurgent groups that aim to lead to
political dialogue. But the real political dialogue still
There is no information on what steps the current needs to be developed.297 Particularly the fighting in
government has taken to support business respect Kachin State still needs to come to an end.
for human rights in operating in such areas.
However, as mentioned afore, there is now a Both the president and Daw Aung San Suu Kyi
political commitment to conduct ESIA assessments have stated that it is crucial to ease ethnic conflicts
in extractive industries.294 Extraction businesses and establish national reconciliation for economic
in Myanmar such as logging, mining, hydropower development and democratic processes. It is one of
projects, and oil and gas extraction are mostly the national priorities to ‘accelerate peace-building,
operated in conflict affected and high risk, resource- political reforms and development initiatives to
rich ethnic areas. Throughout the former military promote reconciliation and national harmony
regime, no regard had been shown in relation to in recent conflict and cease fire areas.”298 It aims
negative human rights impact on local communities to establish mechanisms to provide transparent
incurred by extractive industries.295 There was no and equitable assistance in cease fire and conflict
regulatory oversight over businesses in those areas affected areas.
and local communities had no access to redress to
seek compensation for their injuries.296 7.1 Is the State engaging with business enterprises
operating in conflict-affected and high-risk
294 See notes and accompanying texts under “ESIA Legal areas in relation to identifying, preventing
Framework.” and mitigating the human rights-related risks
295 ERI, “Capitalizing on Conflict: How Logging and Mining of their activities and business relationships?
Contribute to Environmental Destruction in Burma,” 2003; ERI,
“The Burma-China Pipelines.” KDNG, “Valley of Darkness.”; No information.
ERI, “Energy Insecurity”; ERI, “Broken Ethics: the Norwegian
Government’s Investments in Oil and Gas Companies Operating
in Burma (Myanmar),” December 2010.
296 Resource extraction was a lucrative business for both the 7.2 Is the State providing assistance to business
military and the insurgent groups to reinforce their own armed enterprises operating in conflict-affected
forces and groups. And it had increased tension in an attempt and high-risk areas to assess and address the
of controlling over natural resources. For instance, cease fire
groups with the military were allowed to retain their weapons,
heightened risks of human rights abuses,
control some territory, and granted business concessions. They including gender-based and sexual violence?
have become significant fighting forces against their rival groups
and frequently acted as proxies for the military. (See BEWG, No information.
“Burma’s Environment.”)

In many cases, increased military security along gas pipelines

and hydropower projects had increased tension. (ERI, “The
Burma-China Pipelines.” “Investors’ Haste to Build Big Dams is
Undermining Fragile Peace Process in Karen State,” Karen Rivers
Watch, March 14, 2012, accessed July 10, 2012, http://www.
burmapartnership.org/2012/03/investors-haste-to-build-big-
dams-is-undermining-fragile-peace-process-in-karen-state/). 297 See “Kachin Groups Asks UN to take ‘action’ to Stop
For instance, there was a violent conflict in the vicinity of “the Conflict,” Mizzima News, September 26, 2012,accessed October
China-Burma pipelines” project between the Shan State Army- 2, 2012, www.mizzima.com/special/kachin-battle-report/8104-
North (SSA-N) and the army and between the ethnic Kokang kachin-group-ask-un-to-take-action-to-stop-conflict.html.
armed group and the army in 2009. And over 30,000 refugees fled 298 “Nay Pyi Taw Accord for Effective Development
to China. (ERI, “The Burma-China Pipelines.”p.18, 19) Cooperation,” The President Office, The Union of Myanmar.

282 Business and Human Rights in ASEAN

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7.3 Is the State denying access to public support 8.1 Is the State taking steps to ensure that
and services for business enterprises governmental departments, agencies and
operating in conflict-affected and high-risk other State-based institutions that shape
areas that they are involved with human rights business practices are aware of and observe
abuses and refuse to cooperate in addressing the State’s human rights obligations when
the situation? Are there laws, regulations fulfilling their respective mandates?
and/or policies that have the effect of doing
According to the then Minister of Labour in 2011,
so?
the Ministry of Foreign Affairs, the Ministry of
No information. Home Affairs and the Ministry of Immigration and
Population are working closely as a task force on
the protection of migrant workers. An association
7.4 Has the State reviewed its policies, legislation, for safeguarding Myanmar workers was formed
regulations and enforcement measures with a including Myanmar ambassadors in receiving
view to determining whether they effectively countries as patrons and Myanmar entrepreneurs
address the risk of business involvement in as members.301
human rights abuses in conflict-affected and
high-risk areas, and taken steps to address The new foreign investment rules give mandate the
any gaps? Myanmar Investment Commission (MIC) to form
a scrutiny body to study the investment permit
No information. application.302 The body includes the government
departments such as the Directorate of Investment
and Company Administration (DICA), the
8. Is the State taking steps to ensure coherence in
Customs Department, the Revenue Department,
its policies domestically and internationally
the Department of Labour, the relevant department
such that it is able to implement its
from the Ministry of Electric Power, the Department
international human rights obligations?
of Human Settlement and Housing Development,
According to the government during the Universal the Directorate of Trade, and the department of
Periodic Review process, the “Law review has been environmental conservation. When the new body
made by all ministries with a view to submission to examines the application, it can invite experts and
the Hluttaw either to amend, repeal or promulgate scholars from the government and non government
new laws. They review whether existing laws organizations if necessary. However, the MIC has
are compatible with the Constitution299 and the decision power over granting the permit or
international norms.” 300 not.303 One of the requirements for the investment
permit application is to carry out ESIA for large
investments and investments are required to
conduct ESIA in under the rules of the Ministry of
environment and forestry department to do ESIA.304

301 “Minister for Labour Responds to Question of Dr Myat

299 The constitution itself is in controversy in terms of its Nyana Soe,” accessed June, 10, 2012, http://www.burmalibrary.
human rights protection provisions. See also under “The 2008 org/docs12/PYIDH-NLM2011-03-migrant_workers-29.pdf.
Constitution.” 302 2013 Foreign Investment Rules, Chapter 5 and 6, Article 37,
300 Human Rights Council. “Report of the Working Group 38, 39, 40 and 41.
on the Universal Periodic Review: Myanmar,” A/HRC/17/9. 24 303 Ibid., Chapter 8, Article 48.
March, 2011, para. 103 (d). 304 Ibid., Chapter 5, Article 33.

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8.2 Is the State taking steps to maintain adequate A 4,000 megawatt coal-fired plant was included in
domestic policy space to meet its human the project without considering its environmental
rights obligations when concluding economic impact and it has only been cancelled with the
agreements with other States or business decision of the new government on environmental
enterprises? ground.308
Economic agreements made between the State and Meanwhile, the new government has made a policy
other States or business enterprise still need to be
commitment to conduct ESIA for investment projects
made transparent as the reformist government has
with a potential risk for negative environmental and
taken some political and economic reform steps. The
social impacts. In this light, the government has
government of Myanmar and Thailand government
signed a Memorandum of Understanding (MOU) proposed to the Indian government to conduct an
on the comprehensive development of the Dawei ESIA for Kaladan River multi-purpose transport
Special Economic Zone and adjacent areas during project with the administration of a Third Party. The
the president’s visit to Thailand in late July 2012. project will include road construction from Sittwe
A ministerial-level working group was set up to in Arakan State of Myanmar to India border that is
implement projects.305 Meanwhile, local people expected to finish by 2016. 309
near the Dawei-deep-sea port area called on the
governments to provide details of the MOUs Meantime, the existing problems such as land
since it has already caused widespread concern grabbing and negative environmental and
among the local population with regard to their social impacts mainly arose because of a lack
agriculture-based livelihoods due to lack of of transparency, adequate participation of
adequate consultation and information sharing by communities and lack of adequate or inadequate
the government and companies concerned in the ESIA or human rights due diligence process in
past.306 extractive industry projects and large economic
zone projects.310 Economic agreements concluded
The MOU signed by the new government is mainly
during the former military regime appear to have
to boost a US$80-billion project on building an
neglected human rights obligations.
industrial zone and a deep-sea port in Dawei agreed
by Thailand and the former military government
One case is that of the Myintsone dam project,
in 2008. Aung San Suu Kyi made a remark at the
World Economic Forum in June 2012 that Italian- a Chinese funded project. Environmentalists
Thais investors planned deep-sea port excluded and activists had raised concern on the negative
people in regard to the content of the contracts.307 environmental and social impacts of the project
on local people not only in Kachin State where the
305 Supalak Ganjanakhundee, “Sweeping Cooperatoin Deal dam would be built, but also in the regions along
with Myanmar,” The Nation, July 24, 2012, accessed July 30,
2012, http://www.nationmultimedia.com/business/Sweeping- the Ayeyarwaddy River. As the result, in September
cooperation-deal-with-Myanmar-30186843.html. 2011, the president announced that the project had
306 “Dawei Residents Want a Seat at the Table,” Mizzima News,
July 25, 2012, accessed July 30, 2012, http://www.mizzima.com/ 308 Jason Szep and Amy Sawitta Lefevre, “Exclusive-Japan,
business/7597-dawei-residents-want-a-seat-at-the-table.html. Thailand Race to Rescue of Myanmar’s Struggling Dawei,”
307 Daniel Ten Kate, “Thailand Seeks Concrete Progress on Reuters, Sep 21, 2012, accessed Sep 30,2012, in.reuters.com/
Dawei Port, Yingluck Says,” Bloomberg, July 23, 2012, accessed article/2012/09/21/Myanmar-thailand-dawei-idINL4E8KL2A
http://www.bloomberg.com/news/2012-07-22/myanmar- L2012091?rpc=RSS&feedName=domesticNews&rpc=401.
president-to-meet-yingluck-over-stalled-deep-sea-port.html; 309 “Myanmar asked India to do EIA and SIA by Third Party for
Piyanart Srivalo, “Countries Want Japan in Dawei Port Project,” Kaladan River Project” Weeklyeleven, No.42, vol.7, July 25, 2012 (
The Nation, December 18, 2012, accessed January 10, 2013, In Burmese).
http://www.nationmultimedia.com/national/Countries-want- 310 See more at “Overview of Myanmar’s Business and Human
Japan-in-Dawei-port-project-30196340.html Rights Landscape.”

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to be halted during the tenure of his government. 9. Is the State taking steps to ensure, through
Until the implementation of the project, affected judicial, administrative, legislative or other
local people were not informed of the construction appropriate means, that when business-
of the project let alone consulting them in related human rights abuses occur within
conducting EIA that was inadequately done.311 their territory and/or jurisdiction those
The implementation of the project started in 2007 affected have access to effective remedy?
by Asia World Company and the China Power
Investment Corporation in spite of objections of
9.1 What are the legal and non-legal State-based
environmentalists and local residents. An estimated
grievance mechanisms available to those
12,000 people from 63 villages had been relocated
seeking remedy for business-related human
until the project was halted in 2011.312
rights abuses?
Another example is the project known as “Burma- Non-Legal State-Based Grievance Mechanisms
China pipelines.” The economic agreement between
China and former regime had not been made Labour Dispute Settlement Mechanisms under Trade
public. According to an expert from World Wildlife Dispute Act, 2011
Fund, damage to local people such as forest and
soil depletion, loses of farmlands and people’s Under section 10, Chapter III of the 2011 Trade
livelihoods and possible extensive ecosystem Dispute Act, the Region or State Government shall
degradation could be substantial. Activists claim form the Conciliation Body in the townships within
that the project will result in an overall loss for the Region or State. It is chaired by a person assigned
Myanmar since the projected income of US $13.8 by the relevant Region or State Government.
million is unjustifiably low in relation to the damage Members include three employer representatives;
that the project has already incurred and will incur. three worker representatives; two distinguished
An opposition MP has called for reviewing the persons trusted and accepted by employer and
project. 313 labour organizations; a relevant departmental
representative of the township level and a person
assigned by the Ministry of Labour as Secretary. The
8.3 Is the State taking steps to ensure and promote Conciliation Body has a two-year tenure. Disputes
business respect for human rights when that cannot be settled under the mechanism of the
acting as members of multilateral institutions Coordinating Committee314 are to be submitted to
that deal with business-related issues? the Conciliation Body. The cases submitted to the
Not relevant. Body need to be settled within 3 days excluding
the official holidays.315 In case of non settlement
through the mechanism of the Conciliation Body,
311 “Irrawaddy Myintsone Dam,” International Rivers, Sep
30, 2011, accessed Aug 11,2012, www.internationalrivers.org/ the detailed report of the case file needs to be handed
campaigns/irrawaddy-myitsone-dam-0 over to the relevant Arbitration Body within two
312 “Burma to Halt Myitsone Dam Project: Media Reports,”
Mizzima, September 30, 2012, accessed Oct 1, 2012, http:// 314 Under Section 3 to 9, Chapter II, Trade Dispute Act,
eversion.news-eleven.com/index.php?option=com_cont 2011, a non state based mechanism is formed at workplace
ent&view=article&id=941:myanmar-china-gas-pipeline- stations as Workplace Coordinating Body that is consisted of
project-calls-for-review&catid=43:bi-weekly-eleven- representatives of workers and employers. Workers or employers
news&Itemid=110. can lodge complaint their grievances to the Body. Only when the
313 “Myanmar-China Gas Pipeline Project Calls for Review,” Body cannot settle the dispute, the case will be submitted to the
Shwe Gas Movement, July 20, accessed July 30, 2012, http://www. Conciliation Body.
shwe.org/news-update/myanmar-china-gas-pipeline-project- 315 2012 Settlement and Labour Dispute Law, Article 24,
calls-for-reviewhttpwww-shwe-orgwp-adminpost-new-php/ Chapter VI

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days, excluding the official holidays and also submit not allowed to strike.322 The Council then forms
the summary report to the relevant Region or State and assigns a Tribunal with three people from the
Government.316 Council members.323 The Council prescribes the
working methods, procedures and programs of
Under Section 16 (a), Chapter IV, The Ministry, with the Arbitration Body and the Tribunal while the
the approval of the Union Government, shall form a Council is act in accordance with the procedures
Dispute Settlement Arbitration Body in the Regions stipulated by the Ministry.324 The Tribunal needs
or States. The composition of Chair, Members and to make a decision on the dispute, except for a
Secretary is similar to that of the Conciliation Body. decision in respect of essential services, within
The Arbitration Body also has a two-year tenure. fourteen days, not including the official holidays
The Body needs to make decision on the case file and in regard to essential services, within seven
that cannot be settled under the Conciliation Body days.325 After three months from the day of coming
within seven days not including the official holidays into force, the decision of the Arbitration Body or
and inform the concerned parties within two days the Arbitration Council can be amended.326 The
excluding the official holidays.317 Body and the Council are authorized to enter the
workplace and examine the documents or persons
Working methods, procedures and program of
related to the case file.327
the Arbitration Body are stipulated by the Dispute
Settlement Arbitration Council.318 The Council Article 52 gives access to mechanisms based in the
shall be formed by the Ministry of Labour with law at the same time by stipulating that “No party
the approval of the Union Government, with 15 shall be barred to proceed with the right to institute
qualified persons of good standing from legal criminal proceedings in respect of such dispute
experts and experts in labour affairs. They are five during conciliation or arbitration.” And according
persons selected by the Ministry, five selected by to the article 53, The Ministry of Labour can
the employer organizations and five by the labour coordinate with the Supreme Court of the union to
organizations.319 The term of the Council is two establish Labour Courts to try the labour disputes.
years. The Arbitration Council is assigned to act as The article 55 prohibits charging fees to the parties
the independent and impartial organization based in respect of the process of negotiation, conciliation
on social justice, decent work and principles of and arbitration of the dispute.
equity in making decisions.320

If either party of the dispute is not satisfied with Supplementary Understanding mechanism (SU)
the decision of the Arbitration Body, except for a
decision in respect of essential services, they can (Please Refer to Section III, No.1), notes 185 and
apply to the Arbitration Council within seven days 186 and accompanying texts.
not including official holidays or carry out a lock Land Confiscation Investigation Commission
out or strike in accordance with the relevant law.321
In respect of essential services, they can apply to the (Please Refer to Section III, No.1), notes 191-198
Arbitration Council within seven days, but they are and accompanying texts.
316 Ibid., Article 25, 26, Chapter VI. 322 Ibid., Article 29, Chapter VI.
317 Ibid., Article 26, 27, Chapter VI. 323 Ibid., Articles 19-20, 21 (b), Chapter V, Article 30, Chapter
318 Ibid., Article 18, Chapter IV, Article 21 (c),Chapter V. VI.
319 2012 Settlement and Labour Dispute Law, Article 19, 324 Ibid., Articles 21 and 22, Chapter V.
Chapter V. 325 Ibid., Articles 31 and 32, Chapter VI.
320 Ibid., Article 21 (a), Chapter V. 326 Ibid., Article 36, Chapter VII.
321 Ibid., Article 28, Chapter VI. 327 Ibid., Articles 44 and 45, Chapter VIII.

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Letpataung Copper Mine Inquiry Committee 9.3 Are there laws, regulations, policies and/
or initiatives requiring or encouraging the
(Please Refer to Section III, No. 1), notes 203-206 establishment of non-State-based grievance
and accompanying texts. mechanisms?

Legal State-Based Grievance Mechanisms Section 3 to 9, Chapter II, Trade Dispute Act, 2011
contains detailed provisions on the formation
Court (Please Refer to Section III, No.1), notes 169- of Workplace Coordinating Body consisting of
174 and accompanying texts. workers’ and employers’ representatives. Workers
or employers can lodge complaints to the Body.
Only when the Body cannot settle the dispute, the
9.2 What barriers to access to remedy through case will be submitted to the Conciliation Body.332
these State-based grievance mechanisms have
been reported? Under the president’s notifications, Letpa Taung
Inquiry Commission was formed.333
While there is prospect for improvement with the
formation of the new Anti Corruption Committee,328
up to now corruption, bribery and influence of the 10. Is the State giving the country’s National
executive branch over the judicial branch have still Human Rights Institution powers to enable
been the main barriers to access to independent it to contribute to the area of business and
judicial remedy.329 Labour Dispute Mechanisms human rights?
formed under the Trade Dispute Act of 2012 still
need to be applied effectively to ensure access to About MNHRI, please refer to Section III.1, supra
remedy for affected workers.330 According to ILO notes 172-177, accompanying texts.
and labour activists, awareness and understanding
about the freedom of organization and assembly is
11. What are the efforts that are being made by
still weak among employers and some authorities.
non-State actors to foster State engagement
Hence, there have been cases of workers who were
with the Framework and the Guiding
dismissed from their jobs for organizing union
Principles?
formation. And in such cases, affected workers
could not get access to justice and remedy through The Institute for Human Rights and Business
labour dispute mechanisms due to lack of systemic (IHRB) in cooperation with the British
arbitration procedures and due to discrimination Council Yangon held two multi stakeholder
against workers.331 workshops to engage the UN guiding principles to the
State, businesses and civil societies. The Chairman
and the Myanmar Investment Commission, some
328 The anti bribery law to be approved at the Parliament, as of economic advisors of the government and the
February 8, the bill is not yet approved.
329 Kim Jolliffe, “Law Without Order in Myanmar,” Asia Times, Chair of the Myanmar National Human Rights
accessed August 10, 2012, http://www.atimes.com/atimes/ Commission (MNHRC) attended the workshops
southeast_Asia/NG26Ae02.html; “Courage and Cowardice in and gave opening speeches at both workshops.
the Courtroom,” The Irrawaddy.”; Khin Hnin Htet, “Court’ cheats’ On these occasions, they have mentioned that it is
Yuzana Land Grab Victims.” According to the Transparency
International, Myanmar ranks 180 out of 183 countries for the necessary for the State to adhere to the international
2011 Corruption Perceptions Index that is the perceived levels norms including the UN guiding principles to
of public-sector corruption. Transparency International,
“Corruption Perceptions Index 2011,” 2011. 332 2012 Settlement of Labour Dispute Law, Article 3 to 9,
330 See also notes.249-253 and accompanying texts. Chapter II.
331 Ibid. 333 See notes 203-206 and accompanying texts.

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promote responsible investment. A local NGO The Court is the legal grievance mechanism of
called Spectrum has also started initiating guiding the state. Its main challenges include bribery,
principles to the government, MNHRI and corruption and influence of the executive branch
businesses by holding workshops and seminars on over the independent decisions of the judicial
extractive industries. branch. Meanwhile, a anti-corruption committee
was formed and a anti-bribery law is soon to be
approved by the Parliament. The state has shown
Conclusion and Summary its political and policy commitments to carry out
Environmental and Social Impact Assessments in
As part of its political and economic reform process, accordance with international norms. The state also
Myanmar has been promulgating new laws and encourages businesses to adhere to non- binding
reviewing or updating the outdated laws to be CSR mechanisms such as the Global Compact. And
in accordance with the current situations of the recently an EITI leading initiative authority was
country. The 2008 Constitution recognizes the state formed to promote transparency and accountability
duty to protect the rights of workers and peasants by in the extractive industries. In spite of such
promulgating laws and regulations. Except this, the initiatives, the outdated 1914 Myanmar company
Constitution does not contain an explicit, general law and 1940 and 1957 Myanmar company rules
provision on the state duty to protect. Two new have very scant provision on general legal obligation
laws on forming labour associations and settling of directors let alone specific legal obligations to
labour disputes have been enacted while Minimum take into account the human rights impacts of
Wage Act, Employment and Skill Development Act their business enterprises. Until this point in time,
and the Occupational and Skill Development Law the state has not taken steps to encourage business
have been drafted. Two newly enacted land laws, respect for human rights in conflict affected and
Farmland law and Vacant, Fallow and Virgin Lands high-risk areas. However, the state has recognized
Management Law are controversial due to their the need for accountability when acting in these
inadequate protection for small holding farmers. areas. To improve public procurement is one of
The state has established non legal based labour its policy priorities. Although there is no official
dispute settlement mechanisms to safeguard the endorsement of the Framework and the UN guiding
rights of workers and to establish good working principles, there is some recognition on this by high
relationship between employees and employers level officials. While the state has shown its effort to
and to offer grievance mechanisms to the affected solve problems on labour, land and environmental
parties. . Yet, implementation is still weak due to issues, barriers such as lack of transparency in
lack of adequate knowledge about the newly enacted privatization process still hinder progress and
laws by the parties concerned. To respond to land eventually the creation of a fair and just society that
confiscation cases, a parliamentary committee on adheres to human rights.
land confiscation inquiry was formed, however
without a mandate to give binding decisions.

288 Business and Human Rights in ASEAN

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 The Human Rights Resource Centre (HRRC) would like to thank
the following institutions for the tremendous support that made the
Business and Human Rights in ASEAN A Baseline Study possible:

Competence Centre for Human Rights

For further information about HRRC:

Human Rights Resource Centre

Univercity of Indonesia - Depok Campus
Guest House Complex (next to Gedung Vokasi)
Depok, Indonesia 16424
Phone/Fax: (62 21) 786 6720
Email: [email protected]
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ISBN: 978-602-17986-1-4