Thirty-three farmers from near the Thilawa Special Economic Zone in Myanmar are facing criminal trespass charges for defending their land rights by continuing to farm their land in the face of illegal attempts to seize it from them. They have farmed their land in Thida Myaing Village, roughly 600 acres, often for generations and, in 2014, were charged with criminal trespass, almost two decades after the military government first attempted to seize it from them without any due process.
–In the possession of another
–With the intent to injure/intimidate/annoy
Each element of the offence must be met. Clearly the 33 farmers entered the land which they consider to be theirs, but regarding the second element, they assert that the land remained in their possession. The government had not followed the required procedures under the 1894 Land Acquisition Act in 1996 and the farmers had continued to farm their land. This appears to have been expressly acknowledged by the government when it started a formal process to acquire the land from the 33 farmers in 2015, after the complaint of trespass had been made by MEC.
The farmers can also not be said to have intended to injure/intimidate/annoy MEC if the farmers took the view that the land was still theirs. Even if they knew that their continued presence was likely to annoy or inconvenience MEC, this would not meet the intention requirement. Section 441 can be contrasted with other sections of the Penal Code which state that an offence can be committed by a defendant “knowing that it is likely” that something will happen. Section 441 sets the higher requirement of intention.
Myanmar was under the control of a military government led by General Than Shwe.
The Urban and Housing Development Department (UHDD), a department under the Ministry of Construction, seized a large area of land in the Thilawa area, which is situated some 23km southeast of Yangon. This land was primarily farmland and much of it has now been used for the Thilawa SEZ, which is the first SEZ in Myanmar, covering around 2,400 hectares.
The UHDD failed to follow any legal process for this major land acquisition and paid the affected farmers very little, if any, compensation. The seizure included roughly 600 acres of farmland belonging to 33 farmers. This land now falls outside of, but is adjacent to the Thilawa SEZ. These farmers were offered 20,000 kyat per acre (15 US dollars), though at the time the land had a market value of around 300,000 kyat per acre (225 US dollars). The farmers were told that the government would take their land whether they took the money or not, so were left with little choice, but to take the compensation. No projects or development was carried out on this land and the 33 farmers continued to farm it, as many of them had for generations.
At some time after the initial seizure, the UHDD then purportedly transferred the 33 farmers land to the Myanmar Port Authority (MPA).
Around 2002, Myanmar Economic Corporation (MEC) began to use 108 acres of the 33 farmers’ land to start building a shipyard. MEC is one of two major conglomerates in Myanmar that is controlled by the Myanmar military. It is not clear what agreements or transfers were in place between the MPA and MEC. The 33 farmers continued to farm the remainder of the land.
The Yangon Regional Government gave a permit (under section 39 of 1953 Land Nationalization Law) to MEC, changing the land use for all 600 acres of the 33 farmer’s land to permit it to be used as a shipbreaking yard.
MEC required the 33 farmers to give some of their crops to MEC every year, although there appears to have been no formal basis for this requirement.
The MEC made a payment to the Myanmar Port Authority in August 2007 for 108.25 acres of land. This land was then transferred from MPA to MEC. This related to part of the land acquired in 1996/97 and comes within the 600 acres designated for shipbreaking.
MEC stopped collecting crops from the 33 farmers.
In May, a letter was sent by MEC to the relevant villager administration to demand that the 33 farmers stopped farming, but the farmers did not receive such notifications and continued to farm their land.
In July, MEC filed a complaint against the 33 farmers for criminal trespass under sections 441 and 447 of the 1861 Penal Code. This was accepted by the court, and the first hearing took place in December 2014 in Kyauktan Township Court. Hearings have continued since this date, often every two weeks, in what has been a slow and time-consuming process for the 33 farmers.
In April, the Ministry of Home Affairs (MoHA) declared by notification (no. 100/ 2015), that it was going to confiscate 594.17 acres of land in accordance with the 1894 Land Acquisition Act (LAA). The official field numbers for this land were roughly the same as the acres allegedly seized in 1996/97, but the actual area differed slightly. This appears to be explicit recognition that:
- the land seizure in 1996 did not follow the required legal process; and
- the 33 farmers remained the lawful occupants of their farmland.
MoHA did not attempt to rectify the illegality of the land seizure for the land that is now within the Thilawa SEZ. ERI’s work with the communities within the SEZ has documented the inadequate compensation they received along with the unjust relocation policies that have forced them into a long struggle to access remedies. Meanwhile, Myanmar and international companies continue to invest in the SEZ.
MoHA appointed a District Administrative Officer (DAO) to fulfil the administrative role of the ‘Collector’ as required by the Land Acquisition Act. The DAO sent a letter to each of the 33 farmers in May 2015, inviting them to ask for compensation. The 33 farmers all did so, stating that they would like to negotiate compensation for their land. The DAO has not yet responded to these requests.
In March, the 33 farmers entered negotiations with an individual who was purportedly leasing some of the 33 farmers’ land from MEC. This resulted in 9 of the farmers receiving compensation from this individual and an agreement for help to seek the withdrawal of the charges against all 33 farmers. Compensation was paid at 25 million kyat (roughly 18,765 US dollars) per acre, but the charges were not withdrawn.
In January, after more negotiations, seven of the compensated farmers received further compensation for additional land and two other farmers also received compensation.
In March, after over 3 years of litigation, the 33 farmers’ lawyers made their final arguments, asserting that the charges against the farmers had no basis and should be dropped.
In May, the Kyauktan Township Court found the 33 farmers guilty of criminal trespass charges.
The 33 farmers filed an application for revision at the Yangon Southern District Court on June 15, but the District Court summarily dismissed the application immediately without giving any reasons for doing so.
In August, the 33 farmers filed an appeal to the Yangon High Court, which is now considering whether to hear the appeal.