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Submission on World Bank Group Systematic Country Diagnostic and Country Partnership Framework for Burma

Human Rights Watch welcomes the opportunity to provide input into the World Bank Group’s (WBG) future engagement with Myanmar as part of the consultation process on the Systematic Country Diagnostic (SCD) and the Country Partnership Framework (CPF). We have also attended the in-person consultation in Washington, DC and look forward to participating in future consultations both in Myanmar and Washington.

Since the WBG’s initial moves to reengage with Myanmar, Human Rights Watch has urged the WBG to carefully sequence its engagement to support reforms in the country.[i] The WBG appropriately initiated a Community Driven-Development project as its first project following reengagement and gave priority to important analytical work focusing on fiscal transparency and accountability and social and economic needs.

Despite significant reforms, Myanmar’s reform process remains tenuous, particularly approaching the 2015 elections. Some reforms have stalled; others have slid backwards.[ii] In light of this, Human Rights Watch urges the WBG to proceed with a short-term CPF or Country Engagement Note that would require the WBG to take stock of the situation in Myanmar following the elections and determine an appropriate path for engagement at that time.

Human Rights Watch urges the WBG to include in both the SCD and the CPF a frank analysis of Myanmar’s positive developments and the myriad of challenges that remain and to develop strategies that take into account the specific human rights concerns that present challenges to Myanmar’s development goals. The October 2012 Interim Strategy Note offered vague and overly positive assessments of Myanmar’s progress, overlooking a number of key challenges facing Myanmar that are highly relevant to prospects for sustainable, inclusive development. We urge the WBG to remedy this in the upcoming SCD and CPF, particularly as the SCD should include analysis of all major hurdles to sustainable, inclusive development irrespective of whether the WBG intends to engage in those areas.

Human Rights Watch strongly encourages the WBG to address the following issues, including by highlighting them as challenges in the SCD, incorporating them into its policy dialogue with the government, highlighting reforms necessary to overcome them in the CPF, and taking necessary measures to ensure they are addressed in proposed and ongoing WBG projects:

  • The need to ensure community participation in identifying and shaping development priorities, including by addressing ongoing restrictions affecting civil society and the media and taking all necessary steps to ensure that people affected by WBG projects have the opportunity to participate in the development of such projects.
  • The need to address ongoing concerns that present challenges to Myanmar’s development goals, including “ethnic cleansing” in Rakhine State, ethnic armed conflict in Kachin and Shan States and in tenuous ceasefire areas throughout ethnic areas, local concerns about military abuses in ethnic areas, and limited access to justice, among other issues.
  • The need to continue to enhance fiscal transparency and accountability, eliminate off-budget expenditures, recover past off-budget expenditures, and undertake comprehensive anti-corruption efforts.
  • The importance of reforming labor and land laws to advance Myanmar’s development goals.
  • Finally, Human Rights Watch urges the WBG to assess and address the risk of adverse impacts on human rights in all of its projects in Myanmar, as described more fully below.

1. Ensure Civic Participation in Identifying and Shaping Development Priorities

The WBG has increasingly emphasized the importance of civic participation and social accountability for sustainable development. These concepts involve enabling people to provide input into decisions that affect them and hold decision-makers to account, including through civil society organizations. As Myanmar emerges from decades of isolation and repression, the WBG should actively encourage and support the government to implement the systemic reforms necessary for open public discussion and debate to thrive in Myanmar. This will be all the more important in the lead-up to the 2015 elections.

There have been some positive changes in Myanmar that contribute to a more open climate for public debate. However, recent developments have raised serious concerns that the government is backsliding from its initial progress.[iii] This backsliding presents a serious challenge for sustainable, inclusive development as it undermines the ability of people to participate in consultations or work to hold their government and donors to account.

Myanmar’s national parliament has proved a more robust forum for debate and policy formulation than many observers initially thought possible. However, the legislative process and the country’s governance system are still cloaked in opacity, secrecy, and repressive policy and practice that existed under military rule. Parliament often hurriedly passes laws with inadequate debate, while laws are often either deemed official secrets or not shared with the media, civil society, or the public in advance of consideration. Members of Parliament (MPs) have told Human Rights Watch that they often do not have any idea which draft of a particular law is being considered for passage or when it will come up for debate. MPs have almost no time or capacity to confer with the public before voting on a bill. Always hovering in the background is the military quota in parliament that, at times, has acted to shutdown debate on issues it deems sensitive, such as the extensive role of the armed forces, or Tatmadaw, in illegal land grabbing.

The authorities have continued to arrest people for protesting crimes that the authorities would rather keep from public attention. For instance, in June 2014 the authorities arrested four women in Chin State for arranging protests urging punishment of a soldier arrested for attempted rape of a 55-year-old woman.[iv] The ethnic Chin women were charged under section 18 of the deeply-flawed Peaceful Procession Law after they organized two demonstrations of more than 600 women in Razua and Matupi towns.[v] Throughout Myanmar, more than 100 civil society members, land rights activists, and journalists are facing charges under this provision, which imposes up to one-year sentences on any procession leader for marching without permission from local authorities.[vi] The Unlawful Associations Act, articles 122, 124(a), and 505 of the Penal Code, the Law to Safeguard the State from the Danger of Subversive Elements, and the Emergency Provisions Act of 1950 are similarly used to arrest and prosecute people who seek to exercise their basic rights and freedoms.[vii]

All but a few of the 2,100 political prisoners detained as of 2012 have been released, but new ones are being created by the application of these vague and overbroad laws.[viii] The number of documented political prisoners has grown from previous lows to approximately 65, including many peaceful protesters.[ix] Myanmar journalists have also sharply criticized new media legislation for ushering in a new, more subtle form of censorship.[x] The WBG should recognize in the SCD that renewed and ongoing restrictions on the rights to freedom of expression, assembly, and association stunt growth of a vibrant civil society crucial for development.

The October 2013 Telecommunications Law, for which the WBG provided technical assistance, allowed the licensing of two private, foreign-owned telecom companies to spur competition in the sector and expand access to mobile and Internet services. Expanded access to these services has a capacity to enhance civic participation and social accountability; however it also runs the risk of undermining these important objectives if freedom of expression and privacy are not properly protected. Many of the implementing regulations that govern the application of the law have yet to be finalized, including regulation of lawful intercept requirements, government access to personal data held by telecom operators, and Internet filtering.[xi] As part of any telecom regulatory assistance that the WBG provides, it should include policy advice for the development of comprehensive privacy and data protection regulations, including privacy protections that apply to government surveillance. It should support the government to generate an effective policy on data privacy protection, apply this across all projects, and consult a wide range of CSOs in developing this policy. The WBG should raise the prospect of renewed Internet filtering, blocking, and network shutdowns, and press the government to ensure that any restriction on access to information through Internet or mobile networks is transparent and subject to independent oversight.

The World Bank Group should:

  • State in the SCD the gains that have been made in Myanmar to enhance transparency, accountability, and freedom of expression, assembly, and association, as well as the ongoing challenges and evidence that the recent arrests presents of the backsliding on these reforms, recognizing how ongoing restrictions and the lack of transparency and accountability undermines the government’s development agenda.
  • Emphasize in the SCD and CPF the importance of engaging with community groups and nongovernmental organizations in crafting development priorities in Myanmar. Articulate avenues for supporting reforms to enhance meaningful participation, transparency, and accountability in the CPF.
  • Emphasize in its meetings with government ministries and agencies the importance of meaningfully engaging with civil society organizations and networks and creating an enabling environment for civic participation and social accountability, which would require ceasing arbitrary arrests and prosecutions of journalists and civil society activists and amending overbroad and vague laws used for these purposes.
  • Encourage the government to enhance access to information and subject decision-making processes to public discussion and input at all levels and support it to do so wherever possible. Examples include community budgeting initiatives; public, meaningful consultations about proposed legal reforms; and the continued creation of independent oversight bodies when needed.
  • Ensure that affected communities and nongovernmental organizations fully participate in the development of all WBG projects and in the development of the SCD and CPF, ensuring that:

(a)    Project documents are available in local languages, as well as Burmese and English. The SCD and CPF documents should also be translated into minority languages, at a minimum Shan, Karen, Kachin, Chin, and Mon;

(b)   Consultations are conducted with affected people in a local language with an appropriate interpreter; and

(c)    Consultations are fully accessible.

  • In the context of telecommunications technical assistance, ensure that all advice provided is consistent with respect for the rights to freedom of expression and to privacy, particularly with respect to the risks of Internet filtering and illegal surveillance.

2. Recognize Key Human Rights Concerns as Challenges to Myanmar’s Development Goals

The WBG should include in both the SCD and the CPF a frank analysis of both Myanmar’s positive developments and the myriad challenges that remain. Important developments, beyond those discussed above, have included the government expanding dialogues with ethnic armed groups, permitting the International Committee of the Red Cross access to prisons, allowing blacklisted people to enter and leave the country, and an historic election in which members of Aung San Suu Kyi’s long-repressed National League for Democracy (NLD) won seats in parliament. In addition to these gains, we urge you to highlight the following challenges that remain and are some of the most critical and pressing issues in ending extreme poverty and promoting shared prosperity in Myanmar.

A.    “Ethnic Cleansing” in Rakhine State

The repression of the Rohingya Muslim minority, long the target of government abuse, continues on a massive scale. Since sectarian violence flared in June 2012, an estimated 140,000 mostly Rohingya displaced persons have been relocated into camps around Myanmar’s western Rakhine State. Another 40,000 are in isolated non-camp communities receiving little assistance. The government has failed to arrest or prosecute those responsible for the violence against the Rohingya, including those in October 2012 that Human Rights Watch found amounted to crimes against humanity carried out as part of a campaign of ethnic cleansing.[xii]

Myanmar’s 1982 Citizenship Law effectively prevents Rohingya, who have lived for generations in the country, from obtaining citizenship. This has rendered them stateless, which has facilitated human rights abuses against them and has posed serious obstacles to achieving a durable solution to the sectarian violence in Rakhine State.[xiii] Earlier this year, the nationwide census used an outdated and originally problematic list of 135 “national races” that excluded the Rohingya as its own category, instead terming them “Bengali,” a pejorative classification that underscores the government’s view of them as illegal immigrants. Rohingya continue to face tight restrictions on movement, employment, and access to jobs, education, marriage, and many other aspects of their everyday lives.[xiv] For decades they have suffered violations by state security forces, including abusive forced labor, rape, arbitrary detention, torture, and killings.[xv] Discrimination against the Rohingya has played a role in pushing them into increased poverty and is a hurdle to the realization of their social and economic rights.[xvi]

Conditions in the displaced person camps are desperate and are evolving into long-term internment in which Rohingya communities are not permitted outside of camp zones. In February, the government suspended the operations of the humanitarian aid organization Medecins Sans Frontieres (MSF), the primary healthcare provider for Rohingya communities, causing increased suffering of the population. In March, before the census, attacks on United Nations and international nongovernmental organization offices in the state capital, Sittwe, necessitated the withdrawal of over 300 aid workers.[xvii] While operations have been partially resumed, there remain unnecessary restrictions on the operations of aid and development workers, exacerbating an already poor situation. On June 24, the government announced that the MSF suspension was lifted, but they have not come to an agreement on the terms of the organization’s reinstatement, and the aid workers have not yet been able to resume their activities in Rakhine State. Two Rohingya human rights defenders have been in prison for over a year on charges of instigating protests against the continued mistreatment of the Rohingya.[xviii]

In its October 2012 Interim Strategy Note on reengaging with Myanmar, the WBG dismissed this entrenched discrimination as “localized instances of communal violence … that indicate the need to address continuing societal fault lines.”[xix] The attacks on the Rohingya and the impacts on their social and economic rights have heightened since then, but the World Bank has remained silent. The WBG should work to address the urgent social needs of the most in need, and in Myanmar, that includes the needs of the Rohingya and other ethnic minorities. Rakhine State is in urgent need of development aid, being one of the poorest states in the country, but development needs to reach all communities and be carried out in a manner that avoids exacerbating tensions between the various ethnic groups in the state.

The World Bank Group should:

  • In the SCD, frankly discuss the ongoing entrenched discrimination and violence against the Rohingya and other Muslim communities in Rakhine State, stating how institutionalized discrimination undermines the government’s development agenda. Highlight the need to amend the 1982 Citizenship Law and all other laws and policies that discriminate against the Rohingya and other ethnic groups.
  • State in the CPF that the WBG will raise this issue in its dialogue with the government at all levels.
  • Ensure that Rohingya are able to participate in crafting their own development agendas and that all development initiatives financed by the WBG reach and benefit the Rohingya, particularly the nationwide health program, the education program which includes school grants and stipends for poor students, and the community-driven development program.
  • Do not refrain from using the term “Rohingya,” in accordance with the community’s self-identification in the SCD, CPF, and all other WBG documents.

B.     Anti-Muslim Violence and Discrimination

Since 2012 there has been a serious rise in anti-Muslim violence and incitement throughout Myanmar. Attacks took place in a number of towns in central Myanmar in 2013 and in Mandalay in June 2014. The government has been ineffectual in preventing attacks, which are linked to rising Buddhist ultra-nationalism, and often led by prominent Buddhist monks.

The government has also put forward four religion and marriage laws on religious conversion, inter-faith marriage, polygamy, and family planning. While the laws are widely perceived to be directed against Myanmar’s Muslim minority, particularly the Rohingya, the country’s sizeable Christian minority would also be negatively affected.

One of these proposed laws, Emergency Provisions on Marriage Act for Burmese Buddhist Women, would restrict Buddhist women to marrying only Buddhists.[xx] It would require individuals holding other religious beliefs to convert to Buddhism before marrying a Buddhist.[xxi] The proposed law would also require men intending to marry to obtain written approval in advance from the bride’s parents or legal guardian before a wedding could proceed, seriously jeopardizing women’s autonomous decision-making and their freedom to start a family of their choice. The proposed law also sets out a 10-year prison sentence and confiscation of properties of any non-Buddhist who seeks to marry a Buddhist in violation of the law.

Under another of the proposed laws, any Myanmar citizen who plans to change religion must seek a series of permissions from local representatives of government departments, including the Ministries of Religion, Education, Immigration and Population, and Women’s Affairs, and wait 90 days for permission to be granted. Penalties for failing to obtain government permission to change one’s religion are not stated.

These proposed laws would violate fundamental rights to liberty and religious belief, and the prohibitions against discrimination enshrined in the Universal Declaration of Human Rights. It would also violate article 16 of the Convention on the Elimination of All Forms of Discrimination against Women, to which Myanmar is a party, which specifies that governments have an obligation to eliminate discrimination against women in matters relating to marriage and should ensure that women and men have “the same right to enter into marriage.” Article 34 of Myanmar’s 2008 constitution provides that citizens may “freely profess and practice religion subject to public order, morality, or health,” and article 348 ensures that the state “shall not discriminate against any citizen … based on race, birth, religion, official position, status, culture, sex, and wealth.”[xxii]

The WBG should recognize anti-Muslim violence as a key concern in the SCD and the CPF, and state how this violence undermines the government’s development agenda. It should also seek to ensure that people of all religions are able to participate in crafting their own development agendas and that all development initiatives financed by the WBG are free of discrimination and reach and benefit people of all religious communities.

C.    Ethnic Armed Conflict

The government and the Kachin Independence Organization (KIO) reached a tentative ceasefire in mid-2013 following a renewal of fighting in June 2011 that ended a 17-year ceasefire in Kachin State. However, sporadic fighting between the government and the KIO has continued and spread into areas of northern Shan State.[xxiii] An estimated 180,000 primarily ethnic minority people are still internally displaced, and there are reports that the Tatmadaw has engaged in torture and ill-treatment, targeted attacks on civilians, and sexual violence.

A recent summit in the Kachin capital of Laiza convened representatives from ethnic armed groups throughout Myanmar and the government to deliberate on a nationwide ceasefire agreement. Talks have stalled over various issues.[xxiv]

The human rights situation in many ethnic areas remains poor. There are allegations of land grabbing by the military, government officials, and favored business interests; continued abuses by government forces and armed ethnic groups; proliferation of landmines; and restrictions on humanitarian aid to ethnic areas most affected by the fighting.[xxv] The WBG has begun conducting community projects in Myanmar’s border areas, including in areas affected by conflict.

Despite some advances in granting access for humanitarian assistance to conflict areas, the government continues to unnecessarily restrict international humanitarian organizations from providing needed assistance in parts of northern Kachin State, northern Shan State, and all areas of eastern Myanmar where shaky ceasefires are being maintained. There are frequent reports of aid convoys being blocked or delayed and international aid workers not being granted travel authorization. Conditions have not improved to enable more than 350,000 internally displaced persons in eastern Myanmar to return to their homes.

In May 2014, the Thai military staged a coup in Thailand that resulted in a military government acting under martial law. The Thai junta has since announced plans to repatriate over 130,000 Burmese refugees currently residing in refugee camps near the Myanmar border.[xxvi] The Thai government has begun conducting headcounts and restricting movement of refugees outside of some camps.[xxvii] As described above, there is currently no environment for the return of refugees in safety and with dignity. The UN High Commissioner for Refugees office in Thailand has stated explicitly that conditions are not currently conducive for refugees to return to Myanmar.[xxviii] The continued presence of abusive Tatmadaw forces in areas in which the refugees would return is a key stumbling block, but so is the denial of access by humanitarian agencies to all parts of eastern Myanmar to adequately prepare for a return.

The World Bank Group should:

  • Ensure that its investments support, rather than undermine, ceasefire agreements and peace processes.
  • Emphasize through the SCD and the CPF, as well as in dialogues with the government, the importance of ensuring that any peace agreements include effective mechanisms for monitoring and promoting human rights by civil society groups and international organizations.
  • Through the SCD and the CPF, as well as in its dialogue with the government, underscore the importance of access for humanitarian aid workers and the detrimental impact of denying such access on the government’s development goals.
  • Ensure that all projects are developed with the meaningful participation of members of all affected groups, that benefits will reach the most marginalized, and that any adverse impacts on marginalized groups are minimized and provide appropriate compensation. In order to achieve this, the WBG should provide relevant project documents in local languages and provide translation into local languages in its consultations.

D.    Lack of Independent Judiciary, Rule of Law, and Justice for Past Crimes

As the World Bank has recognized in its 2011 Word Development Report, rule of law and justice for past crimes is key to enduring peace and development.[xxix] The WBG should explore avenues for strengthening access to justice in Myanmar, in close partnership with other donors.

The Myanmar government has made little progress in developing an independent, impartial, and effective judiciary and tackling impunity for human rights violations. As the former UN Special Rapporteur on the situation of human rights in Myanmar has emphasized, this is essential to uphold the rule of law, ensure checks and balances on the executive and legislative branches of government, and to safeguard human rights and fundamental freedoms in Myanmar.[xxx] He urged Myanmar to establish a judiciary that is impartial and independent, including from the direct control of the government and the military; guarantee due process of law; refrain from charging individuals for alleged infringement of national laws that are in contravention of the international human rights obligations of Myanmar; establish mechanisms to investigate allegations of human rights violations; seek international technical assistance with a view to establishing an independent and impartial judiciary that is consistent with international standards and principles; and ensure the protection of lawyers against reprisals, particularly in politically sensitive cases.

The World Bank Group should:

  • Highlight in the SCD the absence of an independent, impartial, and effective judiciary; limited access to justice and rule of law; ongoing impunity for past abuses; and the challenge that these issues present for durable peace and development.
  • Outline in the CPF avenues for supporting Myanmar to address these challenges, for instance through the World Bank’s Justice for the Poor program.

E.     Problems with the 2008 Constitution

The 2008 constitution contains numerous provisions that are undemocratic or violate fundamental human rights. The constitution entrenches the military’s control over civilian government.[xxxi] Constitutional provisions give the military: 1) widespread powers to dismiss parliament and—through the National Security and Defense Council—overrule any civilian legislation; 2) the right to appoint 25 percent of the parliament; and 3) an effective veto over any constitutional amendment by requiring the vote of more than 75 percent of the parliament. It also precludes Aung San Suu Kyi from standing for the presidency because of the nationality of her children. Efforts to amend the constitution have made no progress. Discussions about the qualifications for the presidency are stalled, with ruling party leaders saying that this will not be changed before the parliamentary elections. The National League for Democracy’s recent petition drive to demand amendments to the constitution, which has garnered the signatures of over one million Myanmar citizens, prompted threats from the government-controlled Union Electoral Commission to take action against the NLD’s party registration.

The WBG should recognize these limitations in the SCD. While taking steps to address these limitations may be beyond the WBG’s purview, it remains important to acknowledge these problems in the SCD, which should include an independent assessment of all hurdles to development.

3. Emphasize the Need for Advances on Fiscal Transparency and Accountability

Corruption is rampant in Myanmar. The country improved its rank in the 2013 Transparency International Corruption Perception Index to 157th out of 177 countries, but is still considered to have a high level of overall corruption. The widespread and entrenched nature of corruption in Myanmar raises serious risks, including by fostering unequal economic opportunities that undermine the potential for inclusive growth. In addition, the government has not investigated how billions of dollars in natural gas earnings were used under the former government. Allegations persist that funds were corruptly siphoned off and stowed in foreign bank accounts.

The WBG should build on its existing work to advance transparency and accountability over government finances by emphasizing the need for significant improvements regarding the finances of the state security forces, which have off-budget access to funds via military conglomerates such as the Union of Myanmar Economic Holdings (UMEH) and the Myanmar Economic Corporation (MEC), and the military fund created by the 2011 Special Accounts Law, Myanma Oil and Gas Enterprise (MOGE), and other state-owned enterprises. It also should urge the government to dismantle the military’s vast network of businesses that it owns or controls and to fundamentally reevaluate the military’s outsized share of the national budget.

In order to support progress on fiscal transparency and accountability, the World Bank Group should:

  • Emphasize in the SCD the need for all government entities to comply with internationally recognized standards of transparency and accountability, including the state security forces, MOGE, and other state-owned enterprises.[xxxii] Through the CPF, outline measures that the WBG will take to support these reforms.
  • Highlight the need for full implementation of the Extractive Industries Transparency Initiative (EITI) criteria on civil society participation in the SCD and the CPF.[xxxiii] Myanmar was recently accepted as an EITI candidate country, committing to comply with the international standards of transparency in its oil, gas, and mineral extraction industries. Any WBG technical assistance to help Myanmar meet these commitments should focus on substantive requirements to allow for full civil society engagement.
  • Support the wider application of transparency principles to include spending disclosures through open budgeting processes, given that EITI covers revenues only from oil, gas, and mining, and not government spending.[xxxiv]
  • Support projects to build the capacity of Myanmar’s Finance Ministry and parliament to carry out their oversight functions.
  • Encourage the government to create independent oversight bodies, audit all government departments and government spending and make public these audits, make bidding and tendering for government procurement processes open and publish results, and make public contracts for natural resource extraction and sales.
  • Support projects to build the capacity of civil society to scrutinize government budgets, revenue, and expenditure; to provide input into budget allocations; participate in budget planning and oversight processes; and to hold the government accountable for its spending decisions.

4. Highlight Need for Land, Labor Reforms

The WBG should recognize the government’s progress on labor issues, highlight the importance of land and ongoing labor reforms for sustainable development in Myanmar, and recognize the current state of these laws as challenges to Myanmar’s development goals in the SCD. In addition, as discussed in part 4 of this submission, the WBG should take all necessary measures to ensure that its own projects and programs do not directly or indirectly involve or support labor or land rights violations.

A.    Land Reforms

Land confiscations by the government of Myanmar and some private interests are ongoing in Myanmar—perpetuating patterns of human rights abuses. Two land reform bills passed in 2012—the Farmland Law and the Vacant, Fallow, and Virgin Lands Management Law—had no meaningful public consultation, and concerns have been raised that these new laws favor incoming private enterprises over local interests. All land is still by law owned by the government, which maintains the long-time threat of imposing production quotas on small-scale farmers.[xxxv]

The Myanmar Peace Support Initiative has highlighted the potential of land tenure insecurity and ongoing land-grabs to jeopardize the benefits of the peace process to local communities and perhaps even undermine the peace process itself.[xxxvi]

The UN Special Rapporteur on the situation of human rights in Myanmar has emphasized the importance of establishing a system of individual titling and tenure rights for smallholders to protect people against land appropriation and forced evictions, as well as a collective or communal tenure system for land, fisheries, and forests to protect the access of communities to common goods and ensure their participation before land can be converted to new uses.[xxxvii]

Residents and land users who do not possess national identity cards cannot make official claims to land.[xxxviii] This exacerbates the economic vulnerabilities of populations such as the Rohingya, displaced persons, refugees, and survivors of natural disasters who have lost this necessary paperwork, leaving many without adequate legal recourse to counter large-scale grabs of “vacant” land by private companies.

In 2012, the government set up a land investigation committee to document contemporary land disputes. But the committee, which lacks formal decision-making power, cannot investigate any claims that concern land use or ownership prior to 1988, thereby excluding decades of informal plot purchases, illegal seizures, and large-scale land grabs perpetrated by the military.[xxxix]

We urge the WBG to encourage the Myanmar government to seek assistance from international experts and amend the land laws to ensure that they meet international human rights standards. The WBG should also press the government to consult broadly with agricultural and legal experts, farmers’ groups, and other affected elements of civil society in undertaking such land reforms. Moreover, legal reforms should also be done to ensure access to justice when rights are violated so that those facing land confiscations have an effective legal means to contest such seizures.

B.     Labor Reforms

There have been encouraging developments with regard to the right to freedom of association and the elimination of forced labor in Myanmar. Despite these advances, labor violations continue to occur. The WBG should emphasize the importance of building on these changes to ensure that Myanmar’s labor laws and practices fully comply with international labor standards set out in the core International Labour Organization (ILO) conventions.

In December 2013, the government ratified the ILO Convention No. 182 on the Worst Forms of Child Labour. It has since announced plans to enact new child labor elimination policies at the end of this year.[xl] This built on 2012 reforms that legalized the formation of unions for the first time in over 60 years, provided rules for collective bargaining and the resolution of industrial disputes, and brought the definition of forced labor in line with ILO Convention No. 29 on Forced or Compulsory Labour.[xli]

Despite these gains, in practice trade unionists, especially in industrial zones, are still being fired for exercising these rights. There are also credible reports of the military in 2012 using various forms of unpaid forced labor in Rakhine, Chin, Kachin, Karen/Kayin, and Shan States.[xlii] Workers and workers’ organizations should be supported in their right to organize unions, collectively bargain, and take industrial action, including by protecting the rights to peaceful assembly and to strike.

5. Implement Safeguards to Prevent Harm in Development Projects

The history of rights abuses and corruption in Myanmar in relation to infrastructure projects, coupled with the country’s long economic isolation, underscores the importance of analyzing the potential impact of proposed projects on human rights and taking steps to mitigate any adverse impacts.

An initial human rights risk assessment of one World Bank-funded electricity generation project has found that current implementation processes undermines human rights in the development context. The power plant, located in Thaton township, Mon State, was financed without any consultation in the locally predominant Karen language. Karen, Mon, and Pa’Oh political leaders were excluded from decision-making processes. Those that were consulted gave their broad support to the project on the condition that their groups received electricity. However, benefits of increased power generation will contribute only to the existing grid, providing no benefit to the many local people who do not currently have access to electricity. Under the ceasefire agreement between the Karen National Union and the Myanmar government, both sides committed to “support the basic needs of the people and ensure that development projects have the full participation and support of local villages.”[xliii]

The WBG should rigorously implement safeguards as it moves forward with projects in Myanmar.

Such safeguards should include:

  • Broad consultation with ethnic minority groups in all relevant languages, as discussed above in part 1 of this submission.
  • Thorough analysis of human rights risks in both risk analyses and environmental and social impact assessments on any proposed and ongoing projects in Myanmar and development of an action plan to mitigate potential adverse rights impacts, ahead of board consideration. The UN Special Rapporteur on the situation of human rights in Myanmar has recommended that human rights impact assessments be incorporated into the environmental and social impact assessments in large-scale development projects, which requires meaningful consultations with potentially affected groups before the start of the project.[xliv] In light of the high-risk environment, the International Finance Corporation should trigger footnote 12 of Performance Standard 1 and require businesses to undertake human rights due diligence. Assessments, action plans, and any related documents should be developed in consultation with affected communities and civil society, particularly humanitarian and human rights groups, and published ahead of board consideration.
  • Specific analysis of the potential for discrimination on any grounds, land rights violations, and labor rights violations in the context of environmental and social impact assessments, considering the high risk of these problems, as discussed above.
  • Rigorously monitor and supervise implementation of the projects to ensure that human rights are respected throughout and utilize specific, measurable monitoring indicators for social and environmental risks and benefits.
  • Due diligence on government partners and any private sector partners to ensure they are not implicated in rights abuses or corruption.
  • Grievance mechanisms that include social service oriented organizations from ethnic minority groups and from the central (and state) governments and are not connected in any way with the security forces.

The WBG will need to seriously address the issues set out above for it to have a meaningful dialogue with the Myanmar government on challenges to development and a partnership for addressing those challenges. Human Rights Watch recognizes that this will take energy and commitment, but believes it will lead to more pertinent exchange and, over time, improved development results. At least since the 2011 World Development Report on Conflict, Security, and Development, the WBG has recognized all of the above issues as important. Now is a key moment for the WBG to put the lessons from this report into action.

 

[i] Human Rights Watch, “Letter to World Bank President Zoellick on Civic Participation in Burma,” February 8, 2012, https://www.hrw.org/news/2012/02/08/letter-world-bank-president-zoellick-... Human Rights Watch, “Letter to the World Bank Group Regarding Re-engagement with Burma,” October 4, 2012, https://www.hrw.org/news/2012/10/03/letter-world-bank-group-regarding-re-....

[ii] Human Rights Watch, “Letter to President Barack Obama Re: United States Policy Towards Burma,” July 28, 2014, https://www.hrw.org/news/2014/07/28/letter-president-barack-obama-re-unit.... See also, Human Rights Watch, World Report 2014, (New York: Human Rights Watch, 2013), Burma chapter, https://www.hrw.org/world-report/2014/country-chapters/122738; Human Rights Watch, World Report 2013, (New York: Human Rights Watch, 2013), Burma chapter, https://www.hrw.org/world-report/2013/country-chapters/burma; “Burma: Election Body Intimidating Opposition,” Human Rights Watch news release, June 4, 2014, https://www.hrw.org/news/2014/06/04/burma-election-body-intimidating-oppo... “Burma: Drop Draft Religion Law,” Human Rights Watch news release, May 29, 2014, https://www.hrw.org/news/2014/05/29/burma-drop-draft-religion-law; “Burma: Repression Marks Press Freedom Day,” Human Rights Watch news release, May 3, 2014, https://www.hrw.org/news/2014/05/03/burma-repression-marks-press-freedom-... “Burma: Scrap Proposed Discriminatory Marriage Law,” Human Rights Watch news release, March 24, 2014, https://www.hrw.org/news/2014/03/24/burma-scrap-proposed-discriminatory-m....

[iii] “Burma: Repression Marks Press Freedom Day,” Human Rights Watch news release, May 3, 2014, https://www.hrw.org/news/2014/05/03/burma-repression-marks-press-freedom-... David Scott Mathieson, “Dispatches: Burma Backsliding on Media Freedom,” Human Rights Watch, June 30, 2014, https://www.hrw.org/news/2014/06/30/dispatches-burma-backsliding-media-fr... “Burma: Revise or Reject Draft Association Law,” Human Rights Watch news release, August 25, 2013, https://www.hrw.org/news/2013/08/25/burma-revise-or-reject-draft-associat....

[iv] San Yamin Aung, “Charges Against Chin Women’s Activists Must Be Dropped: Campaigners,” The Irrawaddy, July 8, 2014, http://www.irrawaddy.org/burma/charges-chin-womens-activists-must-droppe... (accessed August 11, 2014).

[v] David Scott Mathieson, “Dispatches: Punish Rape in Burma, Not Those Protesting it,” Human Rights Watch, July 9, 2014, https://www.hrw.org/news/2014/07/09/dispatches-punish-rape-burma-not-thos....

[vi] “Burma: New Law on Demonstrations Falls Short,” Human Rights Watch news release, March 15, 2012, https://www.hrw.org/news/2012/03/15/burma-new-law-demonstrations-falls-short.

[vii] Since December 2013, Myanmar authorities have arrested and charged several journalists on apparently politically motivated prosecutions under criminal trespass, defamation, peaceful assembly, and other laws. For example, the police force’s Special Branch arrested four reporters and the CEO of the Unity journal in January 2014 for publishing a story alleging that a government facility, built in 2009 on confiscated farmland, is producing chemical weapons. In July, the Pakokku Township Court found them guilty of violating the Official State’s Secrets Act of 1923 and sentenced them to 10 years in jail with hard labor. “Myanmar journalists sentenced for alleged national security violations,” Jurist, July 12, 2014, http://jurist.org/paperchase/2014/07/myanmar-journalists-sentenced-for-a... (accessed August 19, 2014).

[viii] “Burma: Political Prisoners Released,” Human Rights Watch news release, January 13, 2012, https://www.hrw.org/news/2012/01/13/burma-political-prisoners-released; “Burma: Free Remaining Political Prisoners,” Human Rights Watch news release, September 19, 2012, https://www.hrw.org/news/2012/09/19/burma-free-remaining-political-prison... “Burma: Former Political Prisoners Persecuted,” Human Rights Watch news release, September 17, 2012, https://www.hrw.org/news/2012/09/17/burma-former-political-prisoners-pers... “Burma: Free All Remaining Political Prisoners,” Human Rights Watch news release, December 24, 2013, https://www.hrw.org/news/2013/12/24/burma-free-all-remaining-political-pr... David Scott Mathieson, “Dispatches: Burma Moves on Prisoner Pledge,” Human Rights Watch, https://www.hrw.org/news/2014/01/02/dispatches-burma-moves-prisoner-pledge; David Scott Mathieson, “Dispatches: Burma’s Political Prisoner Revolving Door,” Human Rights Watch, September 4, 2013, https://www.hrw.org/news/2013/09/04/dispatches-burma-s-political-prisoner....

[ix] “Burma: China-Led Oil, Gas Projects Spark Arrests,” Human Rights Watch news release, May 11, 2013, https://www.hrw.org/news/2013/05/11/burma-china-led-oil-gas-projects-spar... “Burma: Drop Charges Against Peaceful Protesters,” Human Rights Watch news release, January 13, 2013, https://www.hrw.org/news/2013/01/13/burma-drop-charges-against-peaceful-p... “Burma: Investigate Violent Crackdown on Mine Protesters,” Human Rights Watch news release, December 1, 2012, https://www.hrw.org/news/2012/12/01/burma-investigate-violent-crackdown-m....

[x] While the repeal of pre-publication censorship and the appointment of a new minister of information are important steps in promoting media freedom, significant restrictions remain in place, including post-publication review of published content. Private daily newspapers now operate, but the Ministry of Information still maintains unilateral authority to withhold or revoke publishing licenses. In March, the government enacted two media laws – the Printers and Publishers Registration Law (drafted by the Ministry of Information) and the Media Law (drafted by the Myanmar Press Council). The government has also imposed new restrictions on journalist visas that limit foreign reporting on the country. For more discussion, see “Burma: Repression Marks Press Freedom Day,” Human Rights Watch news release, May 3, 2014, https://www.hrw.org/news/2014/05/03/burma-repression-marks-press-freedom-day.

[xi] Human Rights Watch, Reforming Telecommunications in Burma: Human Rights and Responsible Investment in Mobile and the Internet, May 19, 2013, https://www.hrw.org/reports/2013/05/19/reforming-telecommunications-burma; “Burma: Telecoms Risk Complicity in Surveillance, Censorship,” Human Rights Watch news release, May 19, 2013, https://www.hrw.org/news/2013/05/19/burma-telecoms-risk-complicity-survei... “Burma: Telecom Winners Should Safeguard Users,” Human Rights Watch news release, June 27, 2013, https://www.hrw.org/news/2013/06/27/burma-telecom-winners-should-safeguar....

[xii] “Burma: Satellite Images Show Widespread Attacks on Rohingya,” Human Rights Watch news release, November 17, 2012, https://www.hrw.org/news/2012/11/17/burma-satellite-images-show-widesprea... Human Rights Watch, “All You Can Do is Pray”: Crimes Against Humanity and Ethnic Cleansing of Rohingya Muslims in Burma’s Arakan State, April 22, 2013, https://www.hrw.org/reports/2013/04/22/all-you-can-do-pray-0; Human Rights Watch, “The Government Could Have Stopped This”: Sectarian Violence and Ensuing Abuses in Burma’s Arakan State, August 1, 2012, https://www.hrw.org/reports/2012/07/31/government-could-have-stopped; “Burma: Investigate New Killings of Rohingya,” Human Rights Watch news release, January 23, 2014, https://www.hrw.org/news/2014/01/23/burma-investigate-new-killings-rohingya; “Burma: Communal Violence Undercuts Rights Gains,” Human Rights Watch news release, January 21, 2014, https://www.hrw.org/news/2014/01/21/burma-communal-violence-undercuts-rig... “Burma Joint Statement: One Year after the Violence Began,” June 24, 2013, https://www.hrw.org/news/2013/06/24/burma-joint-statement-one-year-after-....

[xiii] Ibid. There are an estimated at 800,000 to 1 million Rohingya in Myanmar. The Citizenship Law also discriminates against ethnic Indians, Chinese, Gurkhas, and other groups long resident in Myanmar.

[xiv] Ibid. “Burma: Revoke ‘Two-Child Policy’ For Rohingya,” Human Rights Watch news release, May 28, 2013, https://www.hrw.org/news/2013/05/28/burma-revoke-two-child-policy-rohingya.

[xv] Ibid.

[xvi] Household surveys have shown Rakhine State to be one of the two poorest in Myanmar, together with Chin state. UN General Assembly, Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, U.N. Doc. A/66/365, September 2011, http://www.ohchr.org/Documents/Countries/MM/A-66-365.pdf (accessed June 27, 2014), p. 17; UNDP, “Integrated Household Living Conditions Survey in Myanmar (2009-2010): Poverty Dynamics Report,” 2010, http://www.mm.undp.org/ihlca/index.html (accessed June 27, 2014).

[xvii] “Burma: Postpone Flawed Census to Avert Violence,” Human Rights Watch news release, March 28, 2014, https://www.hrw.org/news/2014/03/28/burma-postpone-flawed-census-avert-vi....

[xviii] Fortify Rights, “Myanmar: Release Rohingya Political Prisoner Kyaw Hla Aung,” August 5, 2014, http://www.fortifyrights.org/publication-20140805.html (accessed August 6, 2014).

[xix] World Bank, “Interim Strategy Note for the Republic of the Union of Myanmar for the Period FY13-14,” 2012, http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2... (accessed July 1, 2014), p.9.

[xx] David Scott Mathieson, “Responding to Buddhist nationalists, Myanmar looks to restrict inter-faith marriage,” Global Post, July 3, 2014, https://www.hrw.org/news/2014/07/03/responding-buddhist-nationalists-myan... Aruna Kashyap, “The Myanmar Marriage Plot” Myanmar Freedom Daily, September 5, 2013, https://www.hrw.org/news/2013/09/05/myanmar-marriage-plot; “Burma: Scrap Proposed Discriminatory Marriage Law,” Human Rights Watch news release, March 24, 2014, https://www.hrw.org/news/2014/03/24/burma-scrap-proposed-discriminatory-m....

[xxi] On May 6, 2014, 97 Burmese women’s groups and community organizations signed a joint petition to the government decrying the inter-faith marriage law. See “Statement of Women’s Groups and CSOs on Preparation of Draft Interfaith Marriage Law,” May 6, 2014, http://www.burmapartnership.org/2014/05/statement-of-womens-groups-and-c... (accessed August 11, 2014); Responding to this petition, nationalist monks referred to these groups as “lice that live under the skin,” and Wirathu referred to them as traitors. Nyein Nyein, “Nationalist Monks Call NGOs ‘Traitors’ for Opposing Interfaith Marriage Bill,” The Irrawaddy, May 12, 2014, http://www.irrawaddy.org/burma/nationalist-monks-call-ngos-traitors-oppo... (accessed August 11, 2014).

[xxii] Constitution of the Republic of the Union of Myanmar, 2008, http://www.burmalibrary.org/docs5/Myanmar_Constitution-2008-en.pdf (accessed August 18, 2014),

[xxiii] “Myanmar: Halt Indiscriminate Attacks in Kachin State,” Human Rights Watch news release, January 17, 2013, https://www.hrw.org/news/2013/01/17/Myanmar-halt-indiscriminate-attacks-kachin-state; “Burma: Rights Abuses Endanger Reform,” Human Rights Watch news release, February 1, 2013, https://www.hrw.org/news/2013/02/01/burma-rights-abuses-endanger-reform.

[xxiv] Bibhu Prasad Routray, “Myanmar’s National Reconciliation: An Audit of Insurgencies and Ceasefires,” Institute of Peace and Conflict Studies Special Report, March 2013, www.ipcs.org/pdf_file/issue/SR138-Myanmar-Bibhu.pdf (accessed August 6, 2014).

[xxv] The government has restricted humanitarian aid to KIO-controlled territories, permitting only minimal and sporadic access. The army has also used antipersonnel mines and conscripted forced laborers, including children, on the front lines. The KIO has also perpetrated serious abuses, including using child soldiers and deploying antipersonnel mines. See Human Rights Watch, “Untold Miseries”: Wartime Abuses and Forced Displacement in Myanmar’s Kachin State, March 20, 2012 https://www.hrw.org/reports/2012/03/20/untold-miseries; Ko Htwe, “14 Kachin refugees arrested by Burmese Army,” DBV, May 5, 2014, http://www.dvb.no/news/14-kachin-refugees-arrested-by-burma-army-myanmar... (accessed August 8, 2014); Human Rights Watch, “Letter to Secretary General Ban Ki-Moon Re: Burma’s Military and UN Peacekeeping,” March 13, 2014, https://www.hrw.org/news/2014/03/13/letter-secretary-general-ban-ki-moon-....

[xxvi] Thin Lei Win, “A decades-old temporary life in Thailand’s largest Burmese refugee camp,” Reuters, July 21, 2014, http://www.trust.org/slideshow/?id=dde9068c-ccfa-4e63-be87-d0f3d3d90bd7 (accessed on August 7, 2014); Amy Sawitta Lefevre, “Thai junta’s pledge to send back Myanmar refugees sparks concern,” Reuters, July 14, 2014, www.trust.org/item/20140714064518-wxbzp/ (accessed August 7, 2014).

[xxvii] Saw Yan Naing, “Uncertainty, Concern Surround Thai Govt Headcount of Refugees,” The Irrawaddy, July 30, 2014, http://www.irrawaddy.org/Myanmar/uncertainly-concern-surround-thai-govt-headcount-refugees.html (accessed August 7, 2014); “Burmese refugees banned from leaving camps in Thailand,” DVB, July 9, 2014, www.dvb.no/dvb-video/burmese-refugees-banned-from-leaving-camps-in-thailand-myanmar/42161 (accessed August 7, 2014).

[xxviii] United Nations High Commissioner for Refugees (UNHCR), “2014 UNHCR country operations profile – Thailand,” 2014, http://www.unhcr.org/pages/49e489646.html (accessed August 18, 2014); UNHCR, “2014 UNHCR country operations profile – Myanmar,” 2014, http://www.unhcr.org/pages/49e4877d6.html (accessed August 18, 2014).

[xxix] World Bank, “World Development Report 2011: Conflict, Security, and Development” May 26, 2011, http://go.worldbank.org/1BOIJMD8H0 (accessed August 18, 2014).

[xxx] OHCHR, Report of the Special Rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana, Mar 12, 2014, U.N. Doc. A/HRC/25/64, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G14/129/94/PDF/G1412994.pdf?O... (accessed August 18, 2014) p. 14. See also, International Bar Association, “The Rule of Law in Myanmar: Challenges and Prospects,” 2012, https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8# (accessed August 18, 2014).

[xxxi] Brad Adams, “Myanmar army continues to live in denial over abuses,” The Bangkok Post, May 9, 2013, https://www.hrw.org/news/2013/05/09/myanmar-army-continues-live-denial-ov....

[xxxii] One key standard is contained in the IMF’s Code of Good Practices on Fiscal Transparency, which identifies a set of principles and practices to help governments provide a clear picture of the structure and finances of government. The IMF is currently in the process of revising the Code, which was published for a second round of public consultations in 2013. See International Monetary Fund (IMF), “Fiscal Transparency Code, Consultation Draft,” July 1, 2013, http://www.imf.org/external/np/exr/consult/2013/fisctransp/pdf/070113.pdf (accessed August 13, 2014); “Code of Good Practices on Fiscal Transparency,” 2007, www.imf.org/external/np/pp/2007/eng/051507c.pdf (accessed August 3, 2012). Also reflected in the IMF Guide on Resource Revenue Transparency and other initiatives. IMF, Guide on Resource Revenue Transparency, 2007, www.imf.org/external/np/pp/2007/eng/051507g.pdf (accessed August 3, 2012). See also IMF, “Fiscal Regimes for Extractive Industries: Design and Implementation,” August 15, 2012, http://www.imf.org/external/np/pp/eng/2012/081512.pdf (accessed August 13, 2014); IMF, Macroeconomic Policy Frameworks for Resource-Rich Countries,” August 24, 2012, http://www.imf.org/external/np/pp/eng/2012/082412.pdf (August 13, 2014).

[xxxiii] Lisa Misol, “Dispatches: Rights, Resources, and Transparency in Burma,” Human Rights Watch, July 2, 2014, https://www.hrw.org/news/2014/07/02/dispatches-rights-resources-and-trans....

[xxxiv] Human Rights Watch, “Extractive Industries: A New Accountability Agenda, Annex C: Burma (Myanmar), Anticipated EITI Candidate,” May 21, 2013, https://www.hrw.org/news/2013/05/21/extractive-industries-new-accountabil....

[xxxv] Murray Hiebert and Phuong Nguyen, “Land Reform: A Critical Test for Myanmar’s Government,” Center for Strategic & International Studies, November 9, 2014, http://csis.org/publication/land-reform-critical-test-myanmars-government (accessed August 9, 2014).

[xxxvi] The Myanmar Peace Support Initiative (MPSI), “Lessons Learned from MPSI’s Work Supporting The Peace Process in Myanmar,” March 2014, http://reliefweb.int/sites/reliefweb.int/files/resources/Report_Lessons-... (accessed August 18, 2014): For example, p. 18: “While conflict-affected communities in Tanintharyi welcome the benefits of peace, they also fear that the ceasefire will bring with it increased land-grabbing by well-connected companies (in collusion with both the KNU [Karen National Union], and local government and military authorities). Furthermore, there is a fear on the part of both communities and Ethnic Armed Groups that the Government is using the peace process to expand and extend its authority into previously inaccessible areas. As most communities still regard the Government as not representing them, and have for decades experienced the Myanmar Army as a violent and predatory force, these concerns threaten to undermine trust and confidence in the peace process.”

[xxxvii] OHCHR, Report of the Special Rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana, April 1, 2014, U.N. Doc. A/HRC/25/64, http://www.ohchr.org/Documents/Countries/MM/A.HRC.25.64.pdf (accessed August 11, 2014), para. 27.

[xxxviii] Transnational Institute, “Access Denied: Land Rights and Ethnic Conflict in Burma,” Burma Policy Briefing No. 11, May 2013, http://www.tni.org/sites/www.tni.org/files/download/accesdenied-briefing... (accessed August 9, 2014).

[xxxix] Phil Thornton, “Myanmar’s Lawless Land,” The Diplomat, October 23, 2013, http://thediplomat.com/2013/10/myanmars-lawless-land/1/ (accessed August 9, 2014).

[xl] ILO, “Myanmar ratifies the Worst Forms of Child Labour Convention,” December 19, 2013, http://www.ilo.org/global/standards/information-resources-and-publicatio... (accessed August 9, 2014); San Yamin Aung, “Govt to Start Child Labor Elimination Policy in December,” The Irrawaddy, http://www.irrawaddy.org/burma/govt-start-child-labor-elimination-policy... (accessed August 9, 2014).

[xli] For further discussion, see Human Rights Watch, “Letter to the World Bank Group Regarding Re-engagement with Burma,” October 4, 2012, https://www.hrw.org/news/2012/10/03/letter-world-bank-group-regarding-re-....

[xlii] PRI, “Labor Laws Strengthened in Myanmar, But Workers Still Struggle,” September 16, 2013,

http://www.pri.org/stories/2013-09-16/labor-laws-strengthened-myanmar-wo... (accessed August 9, 2014).

[xliii] NomoGaia, “World Bank in Burma: What’s at Stake?” August 18, 2014, http://nomogaia.org/2014/08/world-bank-burma-whats-stake/ (accessed August 18, 2014).

[xliv] OHCHR, Report of the Special Rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana, April 1, 2014, U.N. Doc. A/HRC/25/64, http://www.ohchr.org/Documents/Countries/MM/A.HRC.25.64.pdf (accessed August 11, 2014),para. 31. 

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