Report: The right to information and natural resources in Myanmar

Report: The right to information and natural resources in Myanmar - Transparency

Photo: Hpakant, Kachin State, Panos.

The right to information is a human right recognised under international law. The ability of individuals to access information is essential to their effective participation in decision-making relating to land use and natural resource governance. The right to information underpins anti-corruption measures, improves efficiency, and is essential for redressing past harms.

Human rights abuses and conflict related to land use and natural resources are among the most widespread and serious issues facing Myanmar. In recent years, land confiscation has emerged as a crucial concern for ethnic minority communities and other vulnerable populations. Furthermore, the involvement of military-backed conglomerates in the extractive industries and other economic enterprises has given rise to a host of transparency concerns. The lack of information around land ownership and use, as well as the secrecy with which state, quasi-state and private entities operate, has driven conflict, undermined rule of law, and facilitated human rights abuses. The Special Rapporteur on the situation on human rights in Myanmar has highlighted the revenues flowing from extractives projects to the armed forces, ethnic armed organisations and state-owned economic enterprises, warning of a ‘vacuum of transparency and accountability’.

In recent years, the Myanmar government has taken some important steps towards integrating international right to information standards into Myanmar law. As described in this report, many new laws passed since the end of absolute military rule in 2011 make reference to general principles and values relating to transparency and public participation. Some additionally contain specific reporting or disclosure requirements promoting access to information, including the following:

  • Under the Companies Law and Investments Law, businesses are required to report and publish information about their activities and finances.
  • Laws governing land acquisition and use impose notice requirements and periods for public comment.
  • Mandatory environmental impact procedures incorporate extensive requirements to consult communities and publish information concerning proposed and ongoing projects.

Additionally, government policies, including the National Land Use Policy, National Environmental Policy and Climate Change Policy contain strong commitments to promoting participation, transparency and access to information. Good faith adherence to these policies could go a long way in promoting the right to information. Myanmar’s involvement in the Extractive Industries Transparency Initiative (EITI) and other international transparency initiatives is also encouraging.

A review of these and other provisions, policies and initiatives demonstrates that Myanmar still falls far short of meeting its obligations to respect, protect and fulfil the right to information. Most significantly, Myanmar has failed to pass a comprehensive right to information law, a step taken by over 120 other countries. Many laws governing natural resource and land use, even those including disclosure and transparency provisions, fail to incorporate applicable international standards and best practices. Other laws reference general principles relating to transparency and participation, but fail to establish the procedures and accountability mechanisms necessary to turn aspirations into reality. At times, the potential of various laws and regulations is undermined by poor implementation.

Too often, Myanmar’s laws are not used to uphold the right to information but rather to target those seeking information, as illustrated by the conviction and imprisonment of Reuters journalists Wa Lone and Kyaw Soe Oo under the Official Secrets Act. In recent years there has been a surge of intimidation, threats and prosecutions of those attempting to investigate or report on government abuses and misconduct. Those protesting natural resource extraction by private, military-backed and state-owned enterprises have faced similar persecution.

In early 2019, the Myanmar government convened a committee to review its Constitution. This process could provide an opportunity to strengthen constitutional provisions that impact the right to information.

This new report reviews international standards and domestic law provisions relevant to the right to information in the context of natural resource and land use in Myanmar. In examining international treaties, guidelines and initiatives, ARTICLE 19 seeks to highlight standards that could guide Myanmar’s efforts to strengthen the right to information through domestic law and policy. The report also reviews Myanmar’s existing Union-level legal framework as it relates to natural resource and land use, with an eye toward identifying gaps and areas where provisions have deviated from international standards and best practices.

In the years to come, Myanmar’s abundant natural resources could be a foundation for economic growth and sustainable development. However, in the absence of policies that ensure accountability and transparency, they could also drive conflict, corruption and displacement. To avoid these outcomes, Myanmar must embed the right to information in its legal and policy framework.

First, Myanmar should adopt comprehensive right to information legislation that incorporates international standards and best practices. The draft Right to Information Law developed by the Ministry of Information represents a potential point of departure. The Myanmar government should prioritize the passage of the draft law after further consultations with civil society and revisions to ensure alignment with international standards and best practices.

Second, authorities should continue to strengthen disclosure requirements for the private sector. In particular, Myanmar should require disclosure of beneficial ownership and ramp up disclosure requirements in licensing processes in the extractives sector in advance of 2020 EITI reporting.

Finally, the Myanmar government should initiate broader legal reforms to ensure that the right to information is respected, protected and fulfilled. The use of laws such as the Officials Secrets Act to target those seeking, receiving and imparting information undermines the protections offered elsewhere in Myanmar’s legal framework. The adoption of whistleblower legislation should be part of a broader programme of legislative reform to open civic space and create an enabling environment for the right to information and freedom of expression. The Myanmar government should also consider amending its Constitution to explicitly include the right to information. In these efforts, the Myanmar government should be guided by international human rights law and standards. To this end, the Myanmar government must prioritize the ratification and implementation of the International Covenant on Civil and Political Rights.

Read the report