Thilawa farmers convicted of trespass

12 May 2018
Thilawa farmers convicted of trespass
Thilawa site. Photo: Bo Bo/Mizzima

After a long court case that ended on 7 May 33 farmers in Thilawa were found guilty of criminal trespass on land that the government, through an offer of compensation, admitted the farmers owned.
The trial lasted over three years and according to experts should probably have been dismissed on technical grounds in 2015.
A long planned special economic zone (SEZ) is under construction at Thilawa about 10 kilometers away from Yangon, just on the other side of the Yangon River. It is being built by a partnership of the Union of Myanmar Federation of Chambers of Commerce and Industry and the Japan International Cooperation Agency (JICA), each of which is backed by its own respective governments.
Originally the government seized the farmers’ land, which is just outside the SEZ boundary, in 1996.
But, the seizure was illegal because the authorities never followed the 1894 Land Acquisition Act. They also tried to frighten the farmers into accepting inadequate compensation by telling them they would be evicted anyway and receive nothing if they did not accept the offered compensation.
But, because nothing was done with the land after 1996 and because proper procedure had not been followed the farmers continued to farm the land.
Ownership of the land was then transferred to the army controlled Myanmar Economic Corporation (MEC) who eventually turned part of the land into a shipyard.
In 2014 MEC decided to prosecute the farmers for trespass in Kyauktan Township Court.
The farmers fought MEC in the courts claiming that they were not trespassing as it was still their land because the government had seized it illegitimately.
The court case was very drawn out.
It was still underway in April 2015 when the government started proceedings to take the 33 farmers’ land. In May 2015 a government officer wrote to the farmers and told them that they could claim compensation for their land that was being taken by the government.
This should immediately have caused the case to be dismissed. Clearly the government believed the farmers owned the land as it was offering them compensation for the land.
If the government believed the farmers owned the land then they could not be prosecuted for trespass. People cannot trespass on land they own.
As Ben Hardman the Deputy Legal Director at the NGO Earthrights International (ERI) said: “It is very hard to understand how these farmers can be guilty of trespass when the government began a formal process to take their land a year after the charges were filed.”
Unfortunately when the farmers responded to the official who had offered them compensation they received no response.
Eventually in 2017, after prolonged negotiations nine of the farmers received compensation for their land and the cases of trespass against them were dropped. The other 33 farmers received nothing and their prosecutions for trespass carried on ahead.
Why only nine farmers received compensation and had their charges dropped is not known.
As one of the 33 farmers put it: “The judgement is wrong because [MEC] are suing us but they are also giving compensation for the farmland during the court process to some of the defendants. So it is clear that they did wrong.”
Possibly the farmers were found guilty to ensure no precedent was set. Ben Hardman said that if the farmers had been cleared “It would have provided support for other farmers whose land had been taken without the proper process being followed.”
Certainly the farmers only received a token punishment of 500 kyats.
They should never have been prosecuted and after the government offered the farmers compensation the case should have been thrown out as an abuse of process.
As Ben Hardman put it: “In effect, the court has found these farmers guilty of trespassing on land that the government had previously confirmed still belonged to the farmers.”
In a press release ERI said of the farmers’ convictions: “The verdict calls into question when, if ever, Myanmar’s courts will enforce land laws to protect tenants like the 33 farmers. This also seems to conflict with the government’s pledges to resolve historic land disputes.”