Rule of Law Handbook

for

Environmental Law
2019 © Copyright by Konrad-Adenauer-Stiftung Ltd., Myanmar

ISBN - 978 - 99971 - 954 - 2 - 5

Publisher

Konrad-Adenauer-Stiftung Ltd.
Myanmar Representative Office
Yangon, Myanmar
[email protected]
www.kas.de/myanmar/en/

All rights reserved. No part of this book may be reprinted or reproduced or utilized
in any form or by any electronic, mechanical or other means, now known or
hereafter invented, including photocopying or recording, or in any information
storage or retrieval system, without permission from the publisher. The
responsibility for facts and opinions in this publication rests exclusively with the
authors and their interpretations do not necessarily represent those of the
Konrad-Adenauer-Stiftung Ltd.
 Table of

Contents
1 About the
Konrad-Adenauer-Stiftung
3 Acknowledgements

5 Introduction – Rule of Law

Handbook for Environmental Law
Jonathan Liljeblad

15 Myanmar’s Legal System

Kyaw Min San

31 Summary of International
Environmental Law and Adoption
by Myanmar’s Legal System
William (BJ) Schulte

43 Myanmar Laws on Forests,

Biodiversity and Ecosystems in Myanmar
Su Yin Htun

57 Myanmar Laws & Mechanisms to Address

Cases Involving Flora & Fauna Trafficking
Marla Bu

73 Myanmar’s Legal Framework for

Air and Water Pollution Control
William (BJ) Schulte

85 Participatory Mechanisms in Myanmar

for Environmental Impact Assessment
Matthew Baird
About the
Konrad-Adenauer-Stiftung

The basic principles underlying the work of the Konrad-Adenauer-Stiftung (KAS)

are freedom, justice and solidarity. KAS is a political foundation, closely associated
with the Christian Democratic Union of Germany (CDU), named after the first
Chancellor of the Federal Republic of Germany, Konrad Adenauer (1876-1967),
who united Christian-social, conservative and liberal traditions. His name is
synonymous with the democratic reconstruction of Germany and his intellectual
heritage continues to serve both as our aim as well as our obligation today.

We make a contribution underpinned by values to helping Germany meet its

growing responsibilities throughout the world.With 100 offices abroad and
projects in over 120 countries, we make a unique contribution to the promotion of
democracy, the rule of law and a social market economy. To foster peace and
freedom we encourage a continuous dialogue at the national and international
levels as well as the exchange between cultures and religions.

1
We are guided by the conviction that human beings are the starting point in the
effort to bring about social justice and democratic freedom while promoting
sustainable economic activity. By bringing people together who embrace their
responsibilities in society, we develop active networks in the political and
economic spheres as well as in society itself. The guidance we provide on the
basis of our political know-how and knowledge helps to shape the globalization
process along more socially equitable, ecologically sustainable and economically
efficient lines.

We cooperate with governmental institutions, political parties, civil society

organizations, media and think tanks, building strong partnerships along the way.
In particular, we seek to intensify political cooperation in the area of development
cooperation at the national and international levels on the basis of our objectives
and values. Together with our partners we make a contribution to the creation of
an international order that enables every country to develop in freedom and
under its own responsibility.

Since 2006, Konrad-Adenauer-Stiftung has had an active presence in Myanmar.

The Myanmar country project focuses on four objectives:

• Strengthening society’s representation in the legislature by enabling

parliaments and parties to do effective work
• Building out the capacities of democratic and legal institutions as well
as civil society and media
• Promoting a sustainable Social Market Economy
• Developing mechanisms of cooperation among Southeast Asian
countries, Europe and Germany on the basis of democratic and
peace-supporting principles

For more information please visit:

https://www.facebook.com/kas.myanmar/
https://www.kas.de/web/myanmar/home

2
Acknowledgements

The donor and editorial staff wishes to express sincere appreciation and thanks
to the contributors to this volume. The work of writing is not a minor task, and KAS
is grateful to the efforts of the authors to provide their individual expertise to this
collective effort. Individually and collectively, the contributions from the authors
are a work of public service directed towards helping Myanmar’s ongoing
transition. Each chapter is a product of goodwill, commitment, and hard work to a
more functional liberal democracy in the future for the people of Myanmar. It is
with respect and gratitude that KAS acknowledges the dedication and labor of
each author, particularly under the challenges posed by current political
circumstances. Conditions may change, and when they do KAS reserves the
possibility of issuing a revised version of the contents herein.

Last, additional thanks should also be given to the administrative personnel,

translators, and copy-editors that comprised the support staff for this handbook.
The outcome of a project involving multiple members relies upon coordination,
organization, attention to detail, and awareness of timelines. Such
responsibilities were shouldered by the support staff, who worked tirelessly to
keep the project going. The contributions of support staff are without names, but
their labor deserves as much credit as the authors whose names grace the
chapters in this book.
3
4
Introduction – Rule of Law
Handbook for Environmental Law

Jonathan Liljeblad, PhD, JD

Senior Lecturer, College of Law
Australian National University

Background

This handbook is a part of a series arising from the initial Rule of Law Handbook
for Journalists in Myanmar (ROLH for Journalists) published in 2017. The
outcome of a partnership between Konrad Adenauer Stiftung (KAS) and the
United Nations Development Programme (UNDP), the ROLH for Journalists was
a dual-language edited volume with contents in both English and Myanmar
languages aimed at lay audiences. The general purpose was to educate readers
unfamiliar with technical language with information relevant for journalists in
Myanmar, with a succinct review in ordinary language of Myanmar government,
laws, court system, and ethics affecting journalists. While focused on the topic of
journalists, the previous book reached out to Myanmar society to provide a
broader understanding of the status and treatment of journalists in Myanmar.

5
In keeping with the general basis for the ROLH for Journalists, the present volume
seeks to serve a similar function for the topic of environmental law in Myanmar.
Environmental law is a critical issue for Myanmar, which is experiencing a
degradation in its natural resources despite the work of domestic and international
entities to advance conservation in the country. There are continuing problems
that include deforestation, habitat loss, ecosystem degradation, endangered
species trafficking, and pollution. Environmental issues, however, are also
associated with issues such as development, land tenure, access to natural
resources, participation in decision-making, cultural rights, and ethnic conflict. In
response, the past few years have witnessed the passage of new environmental
laws intended to mitigate the damages to Myanmar’s environment. The
effectiveness of such laws, however, is contingent upon Myanmar state and
society having awareness of the laws, a commitment to protect the environment,
and knowledge about how to use the laws to conserve Myanmar’s environment.

Towards such ends, the following chapters seek to present information about the
current state of environmental law in Myanmar, using brief summaries written in
non-technical language understandable to readers with less education. The goal
is to support the growth of an informed population in Myanmar capable of
understanding and engaging debates in Myanmar law or politics. In reaching out
to lay readers, this handbook seeks to make Myanmar environmental law
accessible to a broader portion of Myanmar’s population.

In using this handbook, it should be noted that the framework of the handbook
distinguishes between an education function and an advocacy function. On the
topic of environmental law in Myanmar, the education function would seek to
inform a broad range of readers about Myanmar’s laws affecting the formation
and operation of environmental laws. In contrast, the advocacy function (not to be
confused with the profession of Advocates in Myanmar’s legal system) would
seek to argue in support of specific perspectives regarding potential problems in
the text or implementation of Myanmar laws. Both functions are important for
critical analysis, in that the education function is necessary to ensure that all
people understand the current status of laws (e.g., what the law is), and the
advocacy function is a component of debate advancing changes in the laws (e.g.,
what the law should be). In essence, education is seen as a precursor to
advocacy, such that if advocacy is to reflect debates between informed parties

6
diligently evaluating diverse perspectives then it calls for the provision of
education to as broad a range of society as possible to foster an informed and
diverse populace. The focus of this handbook is more towards the education
function, with the intent of promoting an informed and diverse population capable
of understanding and participating in debates on environmental law in Myanmar.

This book adopts the position that education about law should be accessible to
everyone. Education about law can be construed as the domain of legal
professionals like lawyers and judges, with legal education having a critical role
in ensuring that lawyers and judges have sufficient competency to apply laws as
part of a larger legal system that maintains expectations for rule-of-law.1 Education
about law, however, goes beyond legal professionals, in that the rule-of-law
means that laws apply equally to all members of state and society and legal
actors like lawyers and judges use law on behalf of all members of state and
society. To promote these efforts, it is beneficial for everyone, including legal and
non-legal members of state and society, to have some understanding about law.
The chapters in this handbook serve an education function aimed at reaching
such a broad range of readers.

As a result, in using this handbook a number of points should be observed:

• The purpose is to summarize Myanmar laws in a way that reaches a

diverse population with different levels of reading ability or
understanding of politics and law. This advances the growth of civil
society in Myanmar politics by supporting the development of an
informed population regarding Myanmar environmental law.

1
Jonathan Liljeblad, Democracy, Rule-of-Law, and Legal Ethics Education in Context: Directing Lawyers
to Support Democratization in Myanmar, Georgia Journal of International and Comparative Law 47: 451-
477 (2019).
7
 • The information presented in the chapters provides readers a common
understanding of Myanmar environmental law, and thereby gives
readers a base of knowledge that allows them to reflect and discuss
potential ways to improve the language or implementation of Myanmar
laws. In essence, while the chapters serve an education function
about laws and reserve debates over laws for other policy-oriented
forums, the chapters provide a necessary step that helps readers
understand and engage in such debates.
• The orientation of the chapters furthers social justice, in that the
chapters seek to present information in a way understandable to
lesser educated readers unfamiliar with Myanmar laws. By using
ordinary language and short summaries of law, the chapters serve
segments of Myanmar’s population that are otherwise marginalized by
technical terms or specialized knowledge from the country’s policy
discussions. The chapters, in effect, support equity in terms of helping
marginalized readers to become more informed about Myanmar laws,
foster inclusion by allowing such readers to become informed
members of a Myanmar civil society, and help access by giving
readers sufficient information to understand and engage in Myanmar
politics.
• The chapters deal with what the donor(s) considered to be the more
critical aspects of environmental law in Myanmar, and so are not
intended to be a comprehensive text either in breadth or depth. The
chapters do not intent to replace textbooks or institutional instruction
(e.g., universities, capacity-building programs, etc.). The presentation
of topics in the chapters is meant to supplement such alternative
efforts.
• The handbook is intended to be one of an ongoing series of books
dealing with different rule-of-law topics in Myanmar. As a result, topics
not covered by the chapters in this handbook may be addressed in the
future by subsequent handbooks.

8
The present handbook supports a spirit of enquiry with critical analysis, and
under the above observations welcome—and fully encourage—readers to use
the contents of the following chapters as a basis for further reflection, discussion,
and debate about the language and application of environmental laws within
Myanmar’s larger political and legal development.

Contents

The authors in this volume committed themselves to serve the purpose of

education that serves Myanmar’s transition to democracy. The authors provided
their respective chapters as a public service to Myanmar, contributing their
expertise so that their knowledge could be shared openly and without cost to the
government and people of Myanmar. Each chapter reflects a topic that the
authors thought readers should understand regarding environmental law in
Myanmar:

• Chapter 1: Kyaw Min Sann –

Basic Information on Myanmar’s legal system
• Chapter 2: William (BJ) Schulte –
Summary of International Environmental Law and
Adoption by Myanmar
• Chapter 3: Su Yin Htun –
Myanmar Laws Regarding Ecology
• Chapter 4: Marla Bu –
Myanmar Laws on Trafficking of Flora and Fauna
• Chapter 5: William (BJ) Schulte –
Myanmar Laws on Air and Water Pollution
• Chapter 6: Matthew Baird –
Participatory Mechanisms in Environmental Law

9
Some exceptions in content were made in the above list of topics due to issues
associated with space constraints, uncertain status, or fluid conditions. The
exceptions include topics such as land law, which is a topic of scale and complexity
that calls for more careful treatment with its own dedicated volume.

The authors were invited to participate in this volume because of their expertise
on topics regarding environmental law in Myanmar. Specifically, each author is a
scholar or practitioner in law possessing familiarity with Myanmar and Myanmar’s
legal system. Moreover, each author has prior experience on the topic of their
chapter.

Authors were also invited for their ability to offer diversity in perspectives. While
the contents of the chapters reference international norms, the book as a whole
is intended to educate Myanmar readers regarding Myanmar law. As a result, this
volume sought to host chapters reflecting a mixture of international and domestic
experts who work or reside in Myanmar.

Myanmar’s laws are undergoing a broad process of reform, with the government
drafting and issuing new legislation to further the country’s political and economic
development. The authors collectively recognize the dynamic conditions in
Myanmar law. Care should be taken in applying the chapters in this volume, since
the contents of each chapter reflect the status of Myanmar law recognized by the
respective author at the time of writing (approximately May 2019). Effort has been
made to keep the information as current as possible, but the editors reserve the
right to revise the contents of this volume with updated laws as they may arise in
the future.

Myanmar’s current political transition is accompanied by numerous challenges

that foster a tense environment for public debates. Such difficulties impede the
public deliberation necessary for a functional democracy. In serving an education
function to inform readers about environmental law in Myanmar, the authors are
working to support the growth of public deliberation that provides constructive
debate leading to effective solutions that address the challenges facing Myanmar’s
democracy.

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International and Domestic Law

In addition to the preceding discussion, it is also necessary to provide a comment

regarding the association of international and domestic laws. Much of Myanmar’s
transition following the 2008 Constitution has been conducted with reference to
international standards, with capacity-building efforts by various non-government
organizations (NGOs) regarding rule-of-law involving reforms that bring Myanmar
into greater alignment with international principles. Similarly, the chapters in this
handbook also connect to international standards, both in terms of norms that set
standards for appropriate (or inappropriate) conduct or rules enforcing standards
of conduct. The existence, however, of an international legal system containing
norms and rules does not automatically mean direct application into domestic
law, and so it is important to use some caution in connecting international law with
domestic law.

The application of international law into a domestic legal system depends on

each individual state (e.g., Myanmar). Under international law the concept of a
state involves an attendant concept of legal personality, which means that a state
holds rights and duties that can be enforced in the international legal system.
Generally speaking, the legal personality of a state involves rights and duties as
a sovereign, which means that the state has sovereignty in terms of holding
exclusive control over the population, territory, and resources inside the state’s
borders. The consequence of sovereignty is that a state decides its own domestic
legal system and hence decides the status of international laws within its domestic
legal system.

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Despite the unique status of each state, there are categories that indicate trends
in how countries deal with international law. Broadly speaking, there are the
Monist and Dualist perspectives on international law. Monist perspectives, which
are prevalent in countries that follow a Civil Law tradition (e.g. France, Germany,
Spain), see international law and domestic law as parts of a universal system of
law, such that international law can be readily implemented as domestic law.
Dualist perspectives, which are prevalent in countries that follow a Common Law
tradition (e.g., Australia, Canada, United Kingdom), assert that there is a
difference between international and domestic law, where international law exists
through the consent of states such that state action is necessary to implement
international law as domestic law. With respect to Common Law countries, there
is also a difference between Doctrine of Incorporation and Doctrine of
Transformation. Doctrine of Incorporation essentially means that international
law can automatically become domestic law so long as there is no inconsistency
between them. In contrast, Doctrine of Transformation does not view international
law as automatically becoming domestic law, and instead requires that
international law must be made into domestic law by a domestic statute or judicial
decision.

For Myanmar, the approach to international law held by the Union Attorney
General’s Office and Office of the Supreme Court of the Union is presented in
Evgoni T. Kovtunenko v U Law Yone (1960), which observes that Burmese courts
can only enforce international law that has been enacted by domestic legislative
statutes.2 As a result, to the extent that Myanmar follows the court cases of
Burma, it appears that Myanmar effectively follows a Dualist approach consistent
with a Common Law tradition, exercising the Doctrine of Transformation in terms
of requiring parliamentary legislation to implement international law.

2
Evgoni T. Kovtunenko v U Law Yone (1960), Burma Law Reports 1960: 58-59.
12
It should be noted that enactment via domestic law is not necessarily the same
thing as ratification or accession. The process of making international agreements
(e.g., treaties) involves negotiation between states, and at the conclusion of
negotiations member states place signatures on the agreement to indicate their
intent to comply with the agreement’s terms. After signature, a state follows
domestic procedures for ratification, which means that a state approves adoption
of the agreement and expresses consent to be bound by the agreement. States
that were not present at the negotiation and signing of an international agreement
can choose accession, which means that a state declares that they will accept
and comply with an international agreement. Neither ratification or accession,
however, necessarily declares how an international agreement will be applied in
a domestic legal system. Enactment, in contrast, addresses how an international
agreement is enforced in a domestic legal system, and can occur separate from
ratification or accession. Enactment involves the passage of domestic laws that
implement an international agreement, so that it is possible for state offices to
enforce it upon the population, territory, and resources within a state’s borders.

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14
Myanmar’s Legal System

Kyaw Min San, LL.M (HKU)

Supreme Court Advocate and Legal Consultant

Introduction

Myanmar’s earliest legal system was introduced by the dynasties of the Bagan
period. There was a system of absolute monarchy in the three branches of power:
executive, legislative and judiciary. The King had power to make laws and make
decisions in jurisdiction and administration.

The King decided criminal and civil matters based on Dhammathat, Yazathat and
Phyat-htone.“Dhammathat” is the compilation of Myanmar customary practice,
later called Myanmar customary law. It is the source of Myanmar’s legal system
and includes Myanmar social norms and culture. U Kaung, senior minister to
Kings Mindon and Thibaw, wrote 36 series of “Dhammathat” in 1893 under British
colonial rule (1255 in the Myanmar Calendar). This is well-known and is used in
Myanmar’s Courts today. “Yazathat” refers to the King’s Royal Decisions and
Ordinances and is composed of the King’s commands and criminal laws. “Phyat-
htone” (precedents) refers to the judicial decisions made by the King’s Hluttaw
and various Benches and Courts in the country.

15
British rule introduced a colonial legal system in the country with a formal judicial
system. On 4 April 1897 the British made Myanmar a substate of India.The 1861
India Council Act gave all Indian laws power in Myanmar. In 1852 the British
founded the Chief Court of Lower Burma and various levels of courts in Burma.
In 1886, the British established the Court of Judicial Commissioner for Upper
Burma in Mandalay. In 1922, the High Court of Judicature of Yangon, then known
as Rangoon, was established after the abolishment of the Lower and Upper
Burma Courts. Sub-Divisional Courts, District Civil and Session Courts, and
Township Courts were also established with specific jurisdictions. In addition, the
British introduced several criminal laws as well as civil laws including the Indian
Penal Code (1860), the Criminal Procedure Code (1862), the Indian Evidence
Act (1872) and the Civil Procedure Code (1859). In 1935 the British introduced
the Government of Burma Act 1935, which separated Burma from India and
defined the exclusive jurisdiction and power of the High Court of Rangoon.

During and after the British period, compilations of Court cases and digests were
made, with examples including U Po Thar’s Digest of Burma Rulings Civil and
Criminal (1937-1955), U Thein Han’s Digest of Burma Rulings Civil and Criminal
(1956-1976), U Ba Thaung Tin’s Digest of 50 years in Criminal Law (1923-1973)
and U Than Aung’s Digest of Myanmar Rulings, Criminal and Civil (1971-2010).

Even after Burma’s independence on 4 January 1948, Burma (later Myanmar)

continued to apply and still continues to apply the Common Law legal system.
The Supreme Court, High Court and other subordinate Courts were established
at different levels under the Union Judiciary Act of 1948. The Supreme Court was
the highest court as well as the final appeals court throughout the Union and its
decisions were binding over all other courts. The Burma Code comprises 13
volumes and is the collection of all the laws since the British period until 1954.
The Burma Law Reports are the collection of judgements of the Union Supreme
Court. After 1954, the Burma Law Reports were called the Myanmar Law Reports
and were used as valid precedents for deciding cases in Myanmar.

16
In 1962, the Revolutionary Council abolished the formal judicial system and
formed the Chief Court to be in line with socialism. In 1974, it further introduced
a new Constitution under which the Central Court, the State and Divisional
Courts, the Township Courts, the Wards and Village Tracts courts were
established.

In 1988, the State Law and Order Restoration Council transformed this socialist
judicial system. The Supreme Court and High Court were re-established in the
same year. In 2000 they were again repealed by the State Peace and Development
Council. In 2010 the Union Judiciary Law was enacted to adopt Myanmar’s
current judicial system under the 2008 Constitution.

Myanmar Constitutions

Before independence from the British, Myanmar (then called Burma), was
governed by the Government of India Act (1915), the Government of India Act
(1919, with a diarchical form of government), and the Government of Burma Act
(1935). During the period of Japanese occupation there was the 1943 Constitution
of Burma.

After independence from British rule on 4 January 1948, Burma/Myanmar had

three constitutions: the Constitution of the Union of Burma, 1947 (1947
Constitution); the Constitution of the Socialist Republic of the Union of Burma,
1974 (1974 Constitution); and the Constitution of the Republic of the Union of
Myanmar, 2008 (2008 Constitution). Under the 1947 Constitution Burma was a
wealthy democratic country in South East Asia. This period only lasted for 10
years from 1948 to 1958, under the U Nu Government. From 1958-1960 there
was civil war, and in 1962 a military coup led by General Ne Win abolished
Burma’s multiparty democratic system. Military rule without parliament prevailed
from 1962-1974.

17
Under the 1974 Constitution the country was ruled in a one party socialist system,
its market economy was abolished and all industries were nationalized. The
country’s economy became poor. In 1988, there were widespread protests and
demonstrations and the socialist regime was brought down. The military ruled the
country from 1988 to 2010. Various large demonstrations such as the 1996
student demonstration and the 2007 Saffron Buddhist Monks Movement led to
the finalization of the 2008 Constitution (which had been in process since 1993).
Under the 2008 Constitution, the Union Solidarity and Development Party (USDP)
won the 2010 national election. The National League for Democracy (NLD) led by
Daw Aung San Su Kyi boycotted the election. U Thein Sein’s Government ruled
the country for five years. In the 2012 by-election, the NLD won 43 out of 44 seats
and entered Parliament (Hluttaw). In the 2015 election the NLD won a landslide
victory and has governed the country until now.

The Constitution of the Union of Burma, 1947

The 1947 Constitution was adopted on 24 September 1947 at the National

Constituent Assembly of the Union of Burma, and ended in 1962 by military coup.
It only existed for 14 years. The Head of State was the President and the Head of
Government was the Prime Minister who was the key person driving the nation.
The form of government was a democracy with a bicameral parliamentary
system. There were two Hluttaws: the Chamber of Deputies and the Chamber of
Nationalities.

The 1947 Constitution had 14 chapters and 234 sections. Chapters 1 and 2
explained the form of state, fundamental rights of the people such as the rights
to equality, freedom and religion, economic, cultural and educational rights,
criminal matters and constitutional remedies. Chapter 3 covered relations of the
state to peasants and workers and Chapter 4 outlined directive principles of state
policy. Chapters 5, 6, 7 and 8 covered the roles of the President, Parliament, the
Union Government and Judiciary. Chapter 9 dealt with Shan State, Kachin state,
Karen State, Karenni state, the Special division of Chins and new states. Chapter

18
10 described the right of secession and Chapter 11 provided for amendment of
the constitution. Chapters 12 and 13 were about international relations, general
provision and interpretation. Chapter 14 was a transitory provision. The 1947
Constitution, although democratic, cannot be described as federal because there
was no state or regional parliament and government.

Constitution of the Socialist Republic of the Union of Burma, 1974

Drafted by the Burma Socialist Programme party, the Constitution of the Socialist
Republic of the Union of Burma was adopted and enacted on 3 January 1974.
With this constitution, Myanmar became a socialist state under a one party
system. This constitution ended on 18 September 1988, lasting only 14 years.
The form of government was presidential where the Head of State was the
President (Chairperson of the State Council). There was only one Hluttaw (a
unicameral system) for legislation. Under the 1974 Constitution, U Ne Win was
the supreme authority of the nation and the Socialist Party was the only political
party in the country.

The 16 chapters of the 1974 Constitution described the state, its basic principles
and structures, the Pyithu Hluttaw (the People’s Parliament), Council of State,
Council of Ministers, Council of People’s Justice, Council of People’s Attorneys,
Council of People’s Inspectors, the People’s Council, the fundamental rights and
duties of citizens, the electoral system, recall, resignation and replacement, the
state flag, state seal, national anthem and state capital, amendments to the
constitution and general provisions. There were 209 articles in the constitution.
Different administrative areas were formed with wards or village-tracts, townships,
states or divisions and the state (the Union). There were 14 states and regions
under the 1974 Constitution. It was not democratic or federal because there was
only one Union parliament and no regional or state Hluttaws or governments.

19
Constitution of the Republic of the Union of Myanmar, 2008

The 2008 Constitution took 14 years to be written, from the 1993 National
Convention until its completion on 3 September 2007. It was adopted on 29 May
2008 by means of a national referendum. This is Myanmar’s current constitution.
There are fifteen chapters, with 457 sections and 5 schedules. It sets out basic
principles of the Union, state structures, the role of the Head of State, the
legislature, executive, judiciary and defense services, the fundamental rights and
duties of citizens, elections, political parties, provisions for a state of emergency,
amendments to the constitution, the state flag, state seal, national anthem and
the capital (Nay Pyi Taw), transitory provisions and general provisions. It lays
down a presidential system and a bicameral system with the Union level House
of Nationalities and House of People with 14 regional and state Hluttaws
(parliaments), respectively. The Constitution is based on multi-party democracy
but the military gets 25% of the seats in Union and regional or state parliaments.
The military controls three main ministries: Defense, Home Affairs and Border
Affairs. This Constitution can be described as a quasi-federal democracy because
it has union and state or regional Hluttaws (parliaments) and Union and state or
regional administrations. However, the President of the Union controls the
appointment of Chief Ministers of the regions and states, and this Constitution
does not recognize the autonomy of any states or regions.

Myanmar’s Judicial System

1948 - 1962

After Independence Myanmar’s courts followed the1947 Constitution and the

1948 Union Judiciary Act. The Supreme Court and High Court were established
and conferred jurisdiction to these courts. The Supreme Court was the court of
appeal and the decision of the Supreme Court was in all cases final. The Supreme
Court had the power to interpret questions as to the validity of any law regarding
the provisions of the Constitution. The head of the Supreme Court was Chief
Justice of the Union, and there were no more than five judges on the Supreme
Court.

20
The High Court was a court of first instance and had power to determine all
matters and questions whether of law or of fact. A Chief Justice headed the High
Court and there were no more than 11 judges of the High Court. The High Court
had exclusive original jurisdiction relating to any treaty made by the Union, all
disputes between the Union and a unit or between one unit and another.

There were four classes of criminal courts in Myanmar: the Court of Session,
Magistrate of the First Class (District Court), Magistrate of the Second Class, and
Magistrate of the Third Class according to the Code of Criminal Procedure. This
system is still in use now. There was also juvenile courts, special criminal courts
and special criminal appeal courts. In the 1950 Courts Act, the Rangoon City civil
court was established together with other civil courts such as the district civil
courts, sub-divisional civil courts and township civil courts. From 1948 to 1962
these courts were independent and impartial, and people could apply for writs
with respect to fundamental rights at the Supreme Court.

1962 - 1974

In 1962 the Revolutionary Council took power in a military coup and introduced
an authoritarian system. The Chair of the Revolutionary Council solely controlled
and practised legislative, executive and judiciary power. The Supreme Court and
the High Court were abolished and a Chief Court was established. Subordinate
courts were still the same and special criminal courts were also established. In
1972, a people’s judiciary system was initiated and three representatives of
farmers and labourers became the judges. Under the Chief Courts, there were
state and division people’s courts, township people courts and village and ward
people’s courts.

21
1974 - 1988

The 1974 Constitution stipulated a People’s Justice Body (a central court), state
and division Justice Bodies (people’s courts of state and division levels), township
Justice Bodies (people’s township courts), and village and ward Justice Bodies
(people’s courts of villages and wards). A People’s Justice Body also sat at the
Central Court and was accountable to legislative and administrative authority.
Judges for the People’s Justice Body were nominated by the People’s Parliament
(Pyithu Hluttaw) and judges for the different levels of justice bodies were also
nominated by relevant various levels of council such as state/regional council,
township council, ward and village council. The Central Court was the highest
court of the country and there were subordinate courts such as people’s courts of
state and division, people’s courts of township and people’s courts of villages and
wards. In addition there were also People’s Legal Councils for the purpose of
legal advice to the state. However, the courts were not independent and impartial
at this time.

1988 - 2018

The 1988 Judiciary Law established the Supreme Court with a maximum of five
members including the Chief Justice and other Judges. The law also established
state/regional courts and township courts. Subsequently, the 2008 Constitution
and the 2010 Union Judiciary Act established a Supreme Court and under it High
Courts for each state and region, Courts of Self-Administered Divisions, Courts of
Self-Administered Zones, District Courts, Township Courts and the other courts
constituted by law. Courts of Self-Administered Zones have the same ranking as
District Courts. In case of appeal, they appeal to the High Court of the respective
state or region. If there is a conflict of law, statutory law overrules customary law
and Common Law precedents.

22
In addition, there are courts-martial and the Constitutional Tribunal of the Union.
Courts-martial adjudicate cases relating to defence service personnel. The
Constitutional Tribunal has nine members including a Chairperson. The functions
and duties of the Constitutional Tribunal of the Union are as follows:

a) interpreting the provisions of the Constitution;

b) ensuring that laws promulgated by the Pyidaungsu Hluttaw, Regional
Hluttaw, State Hluttaw or a Self-Administered Division Leading Body
or a Self-Administered Zone Leading Body are in conformity with the
Constitution;
c) checking whether measures of the executive authorities of the Union,
the Regions, the States, and the Self-Administered Areas are in
conformity with the Constitution;
d) deciding Constitutional disputes between the Union and a Region,
between the Union and a State, between a Region and a State, among
Regions, among States, between a Region or a State and a Self-
Administered Area and among the Self-Administered Areas;
e) deciding disputes arising out of the rights and duties of the Union and
a Region, a State or a Self-Administered Area in implementing the
Union Law by a Region, State or Self-Administered Area;
f) checking and deciding matters intimated by the President relating to
the Union’s Territory;
g) other functions and duties conferred by laws enacted by the
Pyidaungsu Hluttaw.

The Supreme Court has the original jurisdiction in matters arising out of bilateral
treaties concluded by the Union and in other disputes except for constitutional
problems. It has jurisdiction between the Union Government and a regional or
state Government, among the regions, among the states, between regions and
states and between the Union Territory and a region or state; and in other matters
as prescribed by any laws. The judgements of the Supreme Court are final and
conclusive. The Supreme Court also has the power to issue writs concerning
fundamental rights of the people for the following: habeas corpus, mandamus,
prohibition, quo warranto and certiorari. Supreme Court judges may number
between seven to eleven, including the Chief Justice,

23
State and regional High Court judges may number from three to seven.They hear
and determine civil cases in which the amount in dispute or value of the subject
matter exceeds 500,000,000 kyats. High Courts of regions or states are not
normally concerned with any criminal offences as courts of first instance except
where special circumstances require them to do so. The High Court of a region
or state has appellate jurisdiction on the judgment, decree and order passed by
a Court of a Self-Administered Division, Court of a Self-Administered Zone or a
District Court, and revisional jurisdiction on a judgment or order in accord with
law. They also adjudicate on the transfer of cases from one court to another
within a Region or State. High Courts of the regions or states adjudicate on
appeal against acquittal of any subordinate court. When an accused person is
convicted of an offence and sentenced by the High Courts of a region or state, he
can appeal against his conviction, sentence, or both to the Supreme Court of the
Union.

The hierarchy of Courts in Myanmar is as follows:

• Union Supreme Court

• States/Regional High Court
• District Court (if there are no self-administered areas in the region or
state or in the Union Territory) or Court of Self-Administered Division
(if there is a self-administered division) or Court of Self-Administered
Zone (if there is a self-administered zone)
• Township courts

District Courts, Courts of a Self-Administered Division, and Courts of a Self-

Administered Zone have jurisdiction relating to original criminal cases, original
civil cases, appeal cases or matters prescribed by any law. Township Courts have
jurisdiction relating to original criminal cases, original civil cases or matters
prescribed by any law.

In addition, there are also Juvenile Courts and other courts founded according to
the laws to try municipal and traffic cases.

24
Myanmar’s Legal Practitioners

There are two classes of lawyers in Myanmar: Supreme Court Advocate and
Higher Grade Pleader. A Supreme Court Advocate can practise in every level of
court including the Supreme Court but a Higher Grade Pleader can practise only
in township and district courts. Legal practitioners are governed by the Bar
Council Act (1926) and the Legal Practitioner Act (1879).

The minimum requirement to practice in the Courts of Myanmar is a Bachelor of

Laws degree (LL.B) plus one year’s practice as a Chamber Student with a
Chamber Master who is an advocate of at least five years of experience. After
completing this a person can apply to be a Higher Grade Pleader. After three
years practice as a Higher Grade Pleader, he or she can apply to be a Supreme
Court Advocate. The Bar Council of the Union then has the right to investigate
cases of lawyer misconduct and report the case to the Union Supreme Court for
disciplinary action such as disbarment if they have doubts about a candidate’s
suitability. Lawyers must follow a code of conduct published as a book entitled the
Ethical Principles of Lawyers and Practitioners, published in 1990 and 1997.

There is a bar association in every capital city of Myanmar’s states and regions.
The Independent Lawyers’ Association of Myanmar was founded in 2013 with
support from the International Bar Association. In addition, there are many
lawyers’ networks such as Myanmar Legal Aid Network and Myanmar Lawyers’
Network. The Legal Aid Law was passed in 2016 and legal aid management
bodies were set up in 2018 at all levels from the Union to township. Legal aid
allows poor people, women and other vulnerable people to access justice and
legal assistance if they are not able to afford lawyers themselves.

25
Judges and public prosecutors are recruited by the Union Supreme Court and
Union Attorney General’s Office, respectively, by government entrance
examinations after graduating with a Bachelor of Laws (LL.B). Currently the
Union Supreme Court has developed a Court Management System under the
Judicial Strategic Plan. The Supreme Court website is open to the public and it is
easy to see reported cases and case lists. The Code of Judicial Ethics was
developed and published on 2 August 2017, enabling judges to be independent
and impartial.

Myanmar Laws

Customary Law

Customary law is practised in Myanmar in relation to inheritance, marriage,

divorce and administration of property. Myanmar customary law applies to
Buddhists. For Christians, Muslims and Hindus related customary laws are
applied based on their religion. Decisions are based on justice, equality and good
conscience.

In Myanmar U Mya Sein’s book Customary Law is well known. According to

Myanmar customary law, polygamy was allowed but the new marriage law
introduced in 2015 abolished polygamy and only allows monogamy. This
overrules all previous customary law; polygamy is currently criminalized in
Myanmar.

26
Criminal Law and Civil Law

Myanmar’s criminal law was introduced by the British as the Penal Code of India
Act (1861) and the Code of Criminal Procedure (1898). The Penal Code involves
511 sections and the Code of Criminal Procedure has 565 sections and five
schedules. The Penal Code covers punishments, general exceptions, the right to
private defence, abetment, criminal conspiracy, offence against the state,
offences relating to the constitution and the art of parliaments, libel against foreign
powers, offences to the Army, Navy and Air Force, offences against the public
peace, offences by or relating to public servants, offences in relation to elections,
contempt of the lawful authority of public servants, false evidence and offences
against public justice, coins and government stamps, weights and measures,
offences affecting public health, safety, convenience, decency and morals,
offences affecting the human body, offences against property, offences relating to
documents, to trade or property marks, offences relating to marriage, defamation,
criminal intimidation, insult and annoyance, attempts to commit offences. In
addition, there are different laws enacted by parliament such as child law, traffic
law, anticorruption law, etc.

The Code of Civil Procedure (1909) is also applied in Myanmar for civil cases.

Myanmar’s Courts Manual relates to the administration of courts for both civil and
criminal matters. The Evidence Act (India Act 1872) is very important for both
criminal and civil matters for deciding a case. It covers relevancy of facts, proof
including oral and documentary evidence, production and effect of evidence,
witness, the examination of witnesses, improper admission and rejection of
evidence.

There are also laws enacted by Parliaments relating to different government

ministries, called special and general laws. Examples include a Gambling Law
(2018), Forestry Law (2018), Anti-Money Laundering Law (2019),
Telecommunications Law (2013), etc.

27
Conclusion

Myanmar is currently in transition to federal democracy and can abolish some of

the laws which infringed on human rights such as the laws on household
registration, the law safeguarding the state from the people who want to destroy
it, the amendment of quarter and ward administration act, etc. The Myanmar
Company Law (2017) opens up space for local and international investors to do
business in Myanmar; it is very easy to establish a company in Myanmar. In
February 2019 the Union Parliament set up a Constitutional Reform Joint
Committee for further reforms to the 2008 constitution with different parties and
military representatives working together.

The Union Supreme Court has published its Judicial Strategic Plan for 2018-
2022, following its three-year Strategic Plan (2015-2017). The Union Supreme
Court plans to facilitate public access to law and court services, to promote public
awareness, to enhance judicial independence of administrative capacity, to
promote and ensure the professionalism, accountability and integrity of the
judiciary and to promote case management and court specialization.

The Legal Aid Law was passed in 2016, a collaborative effort of Myanmar Legal
Aid Networks, the Union Attorney General office, the Union Supreme Court, the
Bill Committee of Pyithu Hluttaw, the UNDP and the UNODC. The Union Attorney
General’s Office has actively promoted the rule of law in Myanmar and fair trials.
This handbook is part of that effort.

Anticorruption laws were also passed in 2014 and amended in 2016, 2017 and
2018. To promote the rule of law, the NLD government has actively pursued law
enforcement on anticorruption since 2015.

To conclude, Myanmar is in a legal reform process working towards a democratic

federal system, highlighting the rule of law and Human Rights.

28
References

1. Myanmar law hand book, U Kyaw Myint Law firm, first edition, March
2014
2. Constitutionalism and constitution in Myanmar by U Than Htaik, 15
November 2013 (Myanmar Version)
3. Constitution of the Republic of the Union of Myanmar (2008
Constitution), August 2011
4. Constitution of the Socialist Republic of the Union of Myanmar, 1974
5. Constitution of the Republic of the Union of Myanmar, 2008
6. The Courts Manual, Volume-1, Fourth edition, 1999
7. Myanmar Customary Law by U Mya Sein, Supreme Court Advocate,
December 2004 edition
8. Ethics and Responsibilities of Lawyers, 1992, 2nd edition, Bar Council,
Union of Myanmar
9. General and special laws by U Ba Kyaing, B.A, B.L
10. Burma Code Volumes 1 to 13
11. A legal history of India and Burma by Maung Ba Han, M.A, Ph.D, D.Lit,
1952, Rangoon
12. http://www.unionsupremecourt.gov.mm/?q=content/high-courts-
region-and-state
13. http://www.nyulawglobal.org/globalex/Myanmar.html#LegalProfession
14. An introduction to the Law and Judicial System of Myanmar by Nang
Yin KHAM [email protected](March2014), https://law.nus.edu.
sg/cals/pdfs/wps/CALS-WPS-1402.pdf
15. Critical issues for the Rule of Law in Myanmar and Human Rights
Papers, Kyaw Min San 2019
16. Index of Myanmar laws and amendments, Union Attorney General’s
Office, April 1998

29
30
Summary of International
Environmental Law and Adoption
by Myanmar’s Legal System

William (BJ) Schulte, JD, LLM

Mekong Region Policy and Legal Advisor
EarthRights International

Introduction

International environmental law is a body of law concerned with protecting the

environment and promoting sustainable development. The main sources of
international environmental law consist of: customary international law;
international, regional, and bilateral treaties; and the decisions of international
courts. For the purposes of this Handbook, this Chapter will focus on international,
regional, and bilateral treaties, which are often referred to as multilateral
environmental agreements (MEA).

31
MEAs are agreements or treaties negotiated or agreed to by nations such as
Myanmar, and they often involve commitments by these nations (which are
referred to as “Parties”) to take certain actions to implement the goals and
objectives of the relevant MEA. This typically means that Parties to MEAs commit
to developing policies, laws, or regulations in order to make their own domestic
legal systems consistent with the requirements of the MEA, as well as active
participation in the governance of the MEA through attendance of periodic
meetings of the MEA’s Conference of Parties (COP) and through reporting to the
COP on their progress with regard to implementing the MEA.

Nations such as Myanmar typically are not automatically bound by MEAs when
they sign one. They must undergo a separate process in order to “ratify” the MEA,
and thereby become a party to it. In Myanmar, the authority to ratify an MEA and
agree to be bound by its terms lies with the Pyidaungsu Hluttaw. Under the terms
of Myanmar’s Constitution, the President should submit international, regional,
and bilateral treaties to the Pyidaungsu Hluttaw for approval.3 If the Pyidaungsu
Hluttaw approves the treaty, then the President shall ratify it.4 The Constitution
also authorizes the Pyidaungsu Hluttaw to permit the President to ratify
international, regional, or bilateral treaties without first obtaining the Hluttaw’s
approval.5

Myanmar has ratified a wide variety of international environmental treaties and

agreements, too many to cover thoroughly in this Handbook. This Chapter will
provide a brief introduction to three of the main international environmental
agreements that Myanmar has ratified, and a summary of how those agreements
are being incorporated into Myanmar’s legal system and other actions Myanmar
is taking to implement these agreements. These three agreements are: the
Convention on International Trade in Endangered Species of Wild Fauna and
Flora; the Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal; and the United Nations Framework
Convention on Climate Change.

3
Constitution, Article 108(a).
4
Constitution, Article 209(a).
5
Constitution, Article 108(b); see also Constitution, Article 209(b).
32
A comprehensive list of the international agreements that Myanmar has ratified
can be found at [Needs Assessment for Effective Implementation of the
Environmental Conservation Law in Myanmar, Appendix 5 (2016)].

Convention on International Trade in

Endangered Species of Wild Fauna and Flora

The Convention on International Trade in Endangered Species of Wild Fauna

and Flora (CITES)6 was concluded on March 3, 1975 and entered into force on
July 1, 1975. Myanmar acceded to CITES on June 13, 1997 and CITES entered
into force in Myanmar on September 11, 1997.

CITES is designed to regulate the international trade in selected endangered

species in order to ensure that such trade does not threaten their continued
survival. CITES seeks to accomplish this goal by subjecting the trade in species
that are listed in the Appendices to the Convention to requirements relating to the
export, import, and re-export of these species. Appendix I includes species that
are “threatened with extinction,” and trade in Appendix I species shall only be
authorized in “exceptional circumstances”.7 Appendix II includes species which
“although not necessarily now threatened with extinction may become so unless
trade in specimens of such species is subject to strict regulation,” and other
species “which must be subject to regulation in order that trade in specimens of
certain species referred to in sub-paragraph (a) of this paragraph may be brought
under effective control”.8 And finally, Appendix III includes all species “which any
Party identifies as being subject to regulation within its jurisdiction for the purpose
of preventing or restricting exploitation, and as needing the cooperation of other
Parties in the control of trade”.9 This lists of species contained in the Appendices
may be amended periodically in accordance with the procedures contained in
Articles XV and XVI.

6
The text of the Conventional on International Trade in Endangered Species (CITES) can be found at:
https://www.cites.org/eng/disc/text.php#II.
7
CITES, Article II(1).
8
CITES, Article II(2).
9
CITES, Article II(3).
33
CITES prohibits international trade in these species except when a permit has
been granted or presented in accordance with specific requirements contained in
Articles III-V of the Convention. However, Article VII of the Convention provides
for certain exemptions to these requirements. Finally, CITES requires Parties to
take measures to enforce the terms of the Convention, including penalizing the
trade or possessions of specimens of the species in Appendices I-III, and
confiscating or returning such specimens to the State of export.10

In order to facilitate the implementation of the provisions of CITES, the Convention

also requires Parties to set up certain institutional bodies. Specifically, Parties
must designate a “Management Authority” that is “competent to grant permits or
certificates”.11 Parties must also establish a “Scientific Authority,” whose purpose
is to provide technical advice on the impacts of international trade in species
covered under the Convention.12 Parties must also prepare periodic reports on
the actions they have taken to implement the Convention and submit these
reports to the Convention Secretariat.13

Myanmar submitted its most recent report to the CITES Secretariat in 2017.14
Among other things, Myanmar reported that it was developing legislation relevant
to CITES implementation – namely, the Conservation of Biodiversity and
Protected Areas Law (CBPAL). The CBPAL was ultimately adopted by the
Pyidaungsu Hluttaw on May 12, 2018.15

10
CITES, Article VIII(1).
11
CITES, Article IX(1)(a).
12
See, e.g., CITES, Article III(2)(a).
13
CITES, Article VIII(7).
14
Link to the CITES report:
https://www.cites.org/sites/default/files/reports/17Myanmar.pdf.
15
Conservation of Biodiversity and Protected Areas Law,
Pyidaungsu Hluttaw Law No. 12/2018, 7th Waxing day of Nayone, 1380 M.E. (May 21, 2018).
34
The CBPAL designates the Director General of the Forest Department within the
Ministry of Natural Resources and Environmental Conservation as the
Management Authority for CITES.16 The CBPAL also directs the Minister of
MONREC to designate a “suitable person or persons” as the Scientific Authority
for CITES.17 The CITES website does list Myanmar’s Scientific Authority for flora/
fauna and fish and aquatic species, respectively, but this appears to have been
last updated in 2014 and is probably not up to date.18 Notably, Myanmar’s 2017
country report to the CITES Secretariat notes that neither the Management
Authority nor the Scientific Authority had sufficient funding, staff, or skills to
function properly.19

As the Management Authority for the Convention, the Director General is given
responsibility under the CBPAL to stipulate the conditions under which various
entities (including local and foreign Government departments, Government
organizations, non-government organizations and individual persons) could be
permitted to capture, transport, possess, breed, cultivate, import or export
protected animal and plant species (including alien species).20 Articles 39 to 45 of
the CBPAL lay out a series of specific offences related to violating the law and the
associated penalties for these violations.21

As of 2018, the Ministry of Natural Resources and Environmental Conservation

was developing a set of Rules designed to add further clarity for the implementation
of the CBPAL’s requirements. However, it is unclear if these Rules have been

16
Conservation of Biodiversity and Protected Areas Law, Article 20(a);
see also Article 2(q) (defining “Director General” as the Director General of the Forest Department).
17
Conservation of Biodiversity and Protected Areas Law, Article 20(b); see also Article 2(p) (defining
“Minister” as the Union Minister of the Ministry of Natural Resources and Environmental Conservation).
18
See, Myanmar Country Page: Convention on the International Trade in Endangered Species
(https://www.cites.org/eng/cms/index.php/component/cp/country/MM).
19
Myanmar CITES Implementation Report for 2017, Indicator 2.2.1(d)
(available at https://www.cites.org/sites/default/files/reports/17Myanmar.pdf).
20
See, e.g., Conservation of Biodiversity and Protected Areas Law, Articles 21-23.
21
See Conservation of Biodiversity and Protected Areas Law, Articles 39-45.
35
finalized and adopted yet.

Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and Their Disposal

The Basel Convention on the Control of Transboundary Movements of Hazardous

Wastes and Their Disposal (Basel Convention)22 was concluded in 1989 and
entered into force on May 5th, 1992. Myanmar approved the Basel Convention
on June 1, 2015 and it entered into force in Myanmar on June 5, 2015.

The overall goal of the Basel Convention is to protect the environment and public
health against the negative impacts arising from hazardous wastes and other
types of wastes. The Basel convention seeks to achieve this goal through three
main priorities: first, to reduce the overall amount of hazardous waste that is
generated and promote environmentally sound management of hazardous
wastes; second, to prohibit the transboundary movement of hazardous wastes
except where it is in compliance with environmentally sound management; and
third, to establish a system of regulations to control the transboundary movement
of hazardous waste.23 “Hazardous wastes” and “other wastes” that are subject to
regulation under the Convention are identified in Article I and in the Annexes to
the Convention.

In order to support the implementation of the Convention domestically, the

Convention requires Parties such as Myanmar to “designate one or more
competent authorities and one focal point."24 A “competent authority” is a
governmental entity that is made responsible for receiving and responding to
notifications of the transboundary movements of hazardous or other wastes in
accordance with Article 6 of the Convention.25 Myanmar has appointed the
Environmental Conservation Department within the Ministry of Natural Resources

22
The text of the Basel Convention can be found at:
http://www.basel.int/TheConvention/Overview/TextoftheConvention/tabid/1275/Default.aspx.
23
“Overview,” at http://www.basel.int/TheConvention/Overview/tabid/1271/Default.aspx.
24
Basel Convention, Article 5(1).
25
Basel Convention, Article 2(6).
26
Myanmar Country Profile: Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal
(http://www.basel.int/Countries/CountryProfiles/tabid/4498/Default.aspx).

36
and Environmental Conservation as the competent authority.26 The “focal point” is
the governmental entity that is made responsible for making notifications to other
Parties and to the Secretariat of the Convention under Articles 13 and 16.27
Myanmar has appointed the Pollution Control Department within the Ministry of
Natural Resources and Environmental Conservation as the focal point.28

Similar to CITES, the Basel Convention also requires Parties to submit annual
reports to the Convention Secretariat, which includes information on the
transboundary movement of hazardous and other wastes within that Party’s
jurisdiction, the measures the Party has adopted to implement the requirements
of the Convention, and measures implemented for the development of
technologies to reduce the production of hazardous and other wastes, among
others.29 As of February 28, 2019, Myanmar had not yet submitted a report to the
Basel Convention Secretariat.

However, Myanmar is taking actions to implement the requirements of the Basel

Convention. For example, Myanmar is actively developing a Master Plan for
Hazardous Waste Management. The Master Plan is being developed by the
Ministry of Natural Resources and Environmental Conservation as part of a
Myanmar-Norway Bilateral Environmental Programme. A Final Consultation
Meeting on the Master Plan for Hazardous Waste Management took place in
Naypyidaw on February 13, 2019.30

27
Basel Convention, Article 2(7).
http://www.basel.int/TheConvention/Overview/TextoftheConvention/tabid/1275/Default.aspx.
28
Myanmar Country Profile: Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal
(http://www.basel.int/Countries/CountryProfiles/tabid/4498/Default.aspx).
29
Basel Convention, Article 13.
30
“Waste Management: Final Consultation on Hazardous
Waste Management Master Plan,” MITV.com (February 13, 2019)
(https://www.myanmaritv.com/news/waste-management-final-consultation-hazardous-waste-
management-master-plan).
37
UNFCCC, Kyoto Protocol, and Paris Agreement

Climate change is widely recognized as one of the greatest global threats that the
planet faces today. In an effort to address this threat, the international community
negotiated and adopted the United Nations Framework Convention on Climate
Change (UNFCCC)31 on May 9, 1992 and it entered into force on March 21, 1994.
Myanmar ratified the UNFCCC on November 25, 1994, and it entered into force
in Myanmar on February 23, 1995.

The ultimate goal of the UNFCCC is to stabilize “greenhouse gas concentrations

in the atmosphere at a level that would prevent dangerous anthropogenic
interference with the climate system”.32 Article 3 of the UNFCCC establishes a set
of foundational principles that should guide Parties in achieving this goal. Notably
for Myanmar, Article 3(1) states that the Parties “should protect the climate
system for the benefit of present and future generations of humankind, on the
basis of equity and in accordance with their common but differentiated
responsibilities and respective capabilities”. Article 3(2) then states that “the
specific needs and special circumstances of developing country Parties,
especially those that are particularly vulnerable to the adverse effects of climate
change, and of those Parties, especially developing country Parties, that would
have to bear a disproportionate or abnormal burden under the Convention,
should be given full consideration”. Accordingly, the UNFCCC divides countries
into two separate groups – Annex I includes developed countries, and Annex II
includes developing countries.

31
The text of the United Nations Framework Convention on Climate Change (UNFCCC) can be found at:
https://unfccc.int/resource/docs/convkp/conveng.pdf.
32
United Nations Framework Convention on Climate Change, Article 2.

38
While the UNFCCC does set out a number of commitments to be undertaken by
Parties, the UNFCCC contains no enforcement mechanisms. Rather, the
Convention sets up a process by which Parties can negotiate and agree on
“protocols” designed to implement the Convention’s commitments. The first of
these, the Kyoto Protocol, was adopted in December 1997 and entered into force
in February 2005.33 In accordance with the principle of “common but differentiated
responsibilities” established in the UNFCCC, the Kyoto Protocol commits Annex
I Parties, or developed countries, to specific emissions reductions targets for six
greenhouse gases that are contained in Annex A to the Protocol. The Protocol
also established several “flexibility mechanisms” to allow the Annex I Parties to
pursue different types of measures to reduce greenhouse gas emissions. One of
these was the Clean Development Mechanism, which essentially allows
developed countries to work toward their emissions reductions targets by
contributing to sustainable development projects in non-Annex I countries.

Although the Kyoto Protocol represented a significant step toward addressing the
worldwide impacts of climate change, it was beset by problems. The United
States never ratified the Kyoto Protocol, and China was not subject to any
emissions reductions commitments. These two countries represent the largest
sources of greenhouse gas emissions in the world. As such, the effectiveness of
the Kyoto Protocol with regard to reducing greenhouse gas emissions and
addressing climate change is questionable. In an attempt to address these
issues, the Parties to the UNFCCC negotiated and signed a new agreement at
the 21st Conference of the Parties in Paris, France in 2015. This agreement is
commonly referred to as the “Paris Agreement”.

33
Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997),
available at https://unfccc.int/sites/default/files/kpeng.pdf.
39
The Paris Agreement “aims to strengthen the global response to the threat of
climate change, in the context of sustainable development and efforts to eradicate
poverty” by taking actions to hold the increase of global average temperatures to
“well below 2ºC above pre-industrial levels and pursuing efforts to limit the
temperature increase to 1.5ºC above pre-industrial levels”; increase Parties’
abilities to adapt to the adverse impacts of climate change; and to make “finance
flows consistent with a pathway towards low greenhouse gas emissions and
climate-resilient development”.34

In order to achieve these goals, the Paris Agreement differs significantly from the
Kyoto Protocol. Essentially, instead of imposing binding emissions limits on
Parties, the Agreement requires Parties to make “nationally determined
contributions to the global response to climate change” and to increase their
efforts over time “while recognizing the need to support developing country
Parties for the effective implementation of the Agreement”.35 The Agreement
requires each Party to prepare their own nationally determined contributions that
they intend to achieve, and to periodically make successive nationally determined
contributions that “represent a progression beyond the Party’s then current
nationally determined contribution and reflect its highest ambition, reflecting its
common but differentiated responsibilities and respective capabilities, in the light
of different national circumstances”.36

Myanmar submitted its first Nationally Determined Contribution (“NDC”) to the

UNFCCC Secretariat on September 19, 2017. The Ministry of Natural Resources
and Environmental Conservation acts as the focal point for the development of
Myanmar’s NDC. In its NDC, Myanmar has identified a number of mitigation
actions and policies in the forestry and energy sectors designed to contribute to
the reduction of global climate change. Additionally, Myanmar identified actions in
sectors including agriculture, forestry, water, infrastructure and biodiversity that
are designed to increase Myanmar’s ability to adapt to the adverse impacts of
global climate change. In large part due to the fact that Myanmar has relatively

34
Paris Agreement (2015), Article 2.
Available at https://unfccc.int/sites/default/files/english_paris_agreement.pdf.
35
Paris Agreement (2015), Article 3.
36
Paris Agreement (2015), Article 4(2,3).
40
low greenhouse gas emissions and is a net carbon sink, Myanmar’s NDC states
that it “wishes to highlight to the international community that, while committed to
making an evidence-based contribution to global mitigation efforts, the national
priority is to adapt to the devastating effects of climate change”.37

With regard to mitigation, Myanmar has identified actions including: increasing

the country’s share of hydroelectric power generation; increasing access to clean
sources of electricity amongst communities and households currently without
access to an electric power grid system; increasing energy efficiency in the
industrial sector; and increasing Myanmar’s total area of Reserve Forests,
Protected Public Forests, and Protected Areas Systems.38 In terms of adaptation,
Myanmar’s NDC captures “several examples of actions which demonstrate the
determination of the country to adapt to climate change and to reduce the risks of
disasters”, and as such does not represent an exhaustive list of Myanmar’s
adaptation actions.39 In the agricultural sector, Myanmar’s NDC states that it is
researching and promoting climate smart agriculture, including research on crop
varieties and diversification of crops, addressing water resources and food
security in Myanmar’s Dry Zone, livestock management, loans for farmers
impacted by climate change, etc.40 In the forestry sector, examples of Myanmar’s
mitigation actions include restoring degraded forests “through community based
reforestation and enhancing rural livelihoods in degraded watershed areas,
coastal areas and northern hilly regions” and mangrove restoration projects.41

In order to provide a framework for achieving these actions, Myanmar is

developing a National Climate Change Policy, Strategy and Action Plan. At the
time of writing this, the Policy, Strategy and Action Plan have not yet been finalized
and issued.42

37
Myanmar’s Nationally Determined Contribution (2017), page 2.
Available at https://www4.unfccc.int/sites/NDCStaging/pages/Party.aspx?party=MMR.
38
Myanmar’s Nationally Determined Contribution (2017), pages 3-4.
39
Myanmar’s Nationally Determined Contribution (2017), pg. 10.
40
Myanmar’s Nationally Determined Contribution (2017), pages 10-11.
41
Myanmar’s Nationally Determined Contributions (2017), pg. 11.
42
For more information on the Climate Change Policy, Strategy, and Master Plan,
see Myanmar Climate Change Alliance, https://myanmarccalliance.org/en/mccsap/.
41
42
Myanmar Laws on Forests,
Biodiversity and Ecosystems in Myanmar

Su Yin Htun, Dr
Lecturer, Department of Law
University of Mandalay

Introduction

Myanmar is abundant in diverse natural habitats with numerous forms of wildlife,

plants and trees in large forests. Although Myanmar has plentiful natural
resources, its environment is seriously threatened by the unsustainable extraction
activities of illegal logging, large scale mining, land degradation and rising
populations in urban area. Myanmar’s biodiversity is also decreasing, especially
in the Indo-Myanmar biodiversity “hot spot” where economic development and
human population growth is placing pressure on natural habitats and species
populations. The major contributors to environmental degradation are (i) the
conversion of closed forests for other land uses, (ii) shifting cultivation, (iii) weak
regulation and control of commercial exploitation and trade in endangered flora
and fauna, and (iv) insufficient environmental impact assessment and integration
of biodiversity concerns into development activities affecting land use change.

43
Recognizing the environmental degradation, Myanmar’s government enacted
the Environmental Conservation Law in 2012 and its rules in 2014. Currently, the
existing Myanmar National Laws are well developed to promote investment and
to protect the country’s natural environment and ecosystems.

Environmental Profile of Myanmar

The Republic of the Union of Myanmar is the second largest country in Southeast
Asia (smaller only than Indonesia). Myanmar covers an area of approximately
677,000 square kilometres ranging roughly 936 kilometres from east to west and
2051 kilometres from north to south. To the north and east of Myanmar lies the
People’s Republic of China and to the east and southeast, Laos and Thailand .
To the south lies the Andaman Sea and Bay of Bengal, and to the west Bangladesh
and India .Myanmar has an estimated coastline of 1930 kilometres and a total
water area of 23,070 square kilometres. Myanmar is a land of hills and valleys
bordered in the northeast and west by mountain ranges. Enclosed within the
mountains are the flat and fertile lands of the Ayeyarwaddy, Chindwin and
Sittaung River valleys. Myanmar has rainy, hot, humid summers (with a southwest
monsoon, June to September) and scant rainfall, mild temperatures and lower
humidity during winter (December to April)43.

Impacts on the Environment in Myanmar

Myanmar is one of the most forested countries in South-east Asia. The forests
are home to many endangered and endemic species and. are globally attractive
for biodiversity and conservation. However, Myanmar faces a serious deforestation
problem year by year. In the early 1990s, Myanmar had a total forest cover of
about 442 000 square kilometres, over 67% of the nation’s land area. By the early
2000s, the forest area had declined to 430 000 square kilometres (65% of the
land area)44. In 2015, the forest area had declined to 290,410 square kilometres
(44% of the land area)45. Because of the deforestation, major environmental

43
https://en.m.wikipedia.org/wiki/Geography_of_Myanmar
44
Peter Leimgruber, forest Cover Change Patterns in Myanmar 1990-2000, P-1.
45
https://tradingeconomics.com/myanmar/forest-area-sq-km-wb-data.html

44
problems arise such as loss of water quality in the delta region, flooding, damage
to fisheries and aquatic habitats, and climate changes such as shorter monsoon
duration and loss of biodiversity. Illegal logging is a challenging issue in Myanmar.

Cyclone Nargis on 2nd May 2008 was the worst natural disaster in Myanmar’s
history. It affected the Ayarwaddy delta region especially Bogale, Labutta and
some towns.The government did not issue an exact number of deaths resulting
from the catastrophic destruction but the United Nations estimated that 1.5 million
people were affected by this cyclone.46

Numerous adverse environmental impacts and human rights concerns are

caused by mining projects. In 1996 at the Letpadaung copper mine around 26
villages and up to 2,500 people47 were displaced when land, including forests,
was apparently cleared for hydraulic and pit mining operations. Waste from the
mining process, including mercury contaminated rocks and soil, is disposed in
ponds within the project area.

In Tenasserim Region’s Dawei District in 2012, residents of Myaung Byo village

faced severe environmental damage to their farmlands caused by Heinda mine’s
wastewater. There was more flooding causing further destruction of houses,
plantations and water sources along Myaung Byo creek, which is now filled with
waste and sediment from the mining project.48

Tigyit coal mine,,begun in 2002 by China National Heavy Machinery Corporation

and Burmese companies Eden Group and Shan Yoma Naga in south eastern
Shan state, lies 13 kilometres from Inle Lake and is Myanmar’s biggest open pit
coal mine, producing 2,000 tons of coal daily. Polluted water from the mine and
waste from the power plant flow via Balu creek into Inle Lake. As yet there has
been no study on the impact of the project on the lake. Two villages were forced
to relocate, and over 500 acres of farmland was confiscated.

46
Joint Typhoon Warning Center (2008). "Cyclone Nargis Warning NR 023". Retrieved 2 May 2008.
47
Myanmar Ahlin Newspaper, Volume 52, Number 163, 12th March, 2013.
48
www.earthrightsinternational.com
45
Land degradation, particularly soil erosion in upland agricultural areas and dry
zones, contributes toto environmental degradation in Myanmar. In 2008, of the
country’s total cultivated area, 33% was estimated as vulnerable. Natural
processes in vulnerable farming areas are aggravated by human interventions
such as extensive forest harvesting, mono-cropping practices, and shifting
cultivation. Population growth is a key issue for land degradation and land
productivity changes. From 1980 to 2008, the population in the uplands
unexpectedly increased by 7 million to 17.5 million people, or about 30% of the
national population.49

Environmental impacts of climate change have occurred in Myanmar in recent

decades. Many areas have experienced heat waves, droughts, floods, cyclones,
and wildfires, especially in large scale project areas, economic zones and
industrial zones. As Myanmar has recognized environmental issues, the
government has provided policy, laws and regulations, from time to time.

Environmental Regulation in Myanmar

The Constitution of the Republic of the Union of Myanmar lays down the state’s
responsibility to protect and conserve the natural environment.50 The national
legislature enacts laws to protect the environment and help restore areas
degraded or damaged by mining and forestry activities or those that have
experienced destruction of plants, wildlife, and habitat.51 In addition, every citizen
has a duty to “assist” the government in carrying out environmental conservation.52
The 2008 Constitution permits economic activities such as cooperatives, joint-
ventures, and private enterprises53 for the development of the national economy.

49
Interim Country Partnership Strategy: Myanmar, 2012-2014, Asia Development Bank, 2014.
50
Chapter 1, Section 45 of the Constitution of the Republic of the Union of Myanmar, 2008.
51
Chapter 4, Section 96, of the Constitution of the Republic of the Union of Myanmar, 2008.
52
Chapter 8, Section 390, Ibid.
53
S.36 of the Constitution of the Republic of the Union of Myanmar, 2008
46
Policies and legal regulations that have been promulgated over the past two
decades to address forest management, environmental conservation practices
and wildlife protection in Myanmar are as follows: Myanmar Forest Policy (1995),
Myanmar Agenda 21 (1998), Public Health Law (1972), Territorial Sea and
Maritime Zone Law (1977), Fishing Rights of Foreign Vessels Law (1989), Marine
Fisheries Law 1990, Pesticide Law (1990), Plant Pest Quarantine Law (1993),
Fertilizer Law (2002), Conservation of Water Resources and River Law (2006),
National Code of Forest Harvesting Practices in Myanmar (2000), Investment
Law (2016), Conservation of Biodiversity and Protected Area Law (2018) and
Myanmar Forest Law (2018).

The main themes of environmental conservation are based on environmental

policy formulated in 1994 concerned with: public education and participation;
food and nutrition; food production; essential consumption items; production
methods; research and studies; and institution building.54 To establish sound
environment policies in the utilization of water, land, forests, mineral, marine
resources and other natural resources in order to conserve the environment and
prevent its degradation, the Government of the Union of Myanmar adopts policies
for people, cultural heritage, environment and natural resources. The policies aim
to achieve harmony and balance between environmental considerations and
development processes to enhance the quality of life of all citizens. The
development of environmental protection is a primary objective.55

On 30th March 2012, the Environmental Conservation Law came into being
(Notification No.9/2012). With respect to forestry management, the relevant
government departments and government organizations shall, in accordance
with the guidance of the Union government and Environmental Conservation
Committee, conserve, manage for beneficial and sustainable use and the
enhancement of regional cooperation, Myanmar’s forest resources.56 The
management, conservation and enhancement of environments for the protection

54
www.un.org/es/agenda/21/natlinfo/countr/myanmar/eco.htm
55
Notification No. 26/94 on 5th December 1994, the Government of the Union of Myanmar.
56
Section.18 of the Environmental Conservation Law.

47
of the ozone layer, conservation of biological diversity, conservation of coastal
environments, mitigation and adaptation to the effects of global warming and
climate change, combating desertification and management of non-depleting
substances and of other environmental matters is part of the duties and powers
of the Ministry of Natural Resources and Environmental Conservation (MONREC,
or the “Ministry”).57

The Environmental Conservation Law 2012 vests responsibility with MONREC

for stipulating the following environmental quality standards: suitable surface
water quality standards re use of rivers, streams, canals, springs, marshes,
swamps, lakes, reservoirs and other inland public water sources; water quality
standards for coastal and estuarine areas; underground water quality standards;
atmospheric quality standards; noise and vibration standards; emissions
standards; effluent standards; solid wastes standards; other environmental
quality standards stipulated by the Union Government.58

In order to implement the environmental law, the Environmental Conservation

Rules were enacted on 5th June 2014, according to S.42 of the Environmental
Conservation Law.59 MONREC can publish these standards ( in the government
gazette) with the approval of the Union government and the Environmental
Conservation Committee. The Ministry will determine categories of hazardous
wastes and set requirements for businesses to treat solid and hazardous wastes,
including setting up facilities individually or collectively. In respect of mineral
resources, the relevant Government departments and Government organizations
are responsible for the conservation, management for beneficial and sustainable
use and the enhancement of regional cooperation.60 The Ministry of Natural
Resources and Environmental Conservation shall maintain a comprehensive
monitoring system and implement measures by itself or in co-ordination with
relevant Government departments and organizations.61

57
Section.7, Ibid.
58
S.10 of the Environmental Conservation Law 2012.
59
Environmental Conservation Rules, 5th June 2014, Notification No.50/2014, www.burma.library.org
60
S.18 of the Environmental Conservation Law 2012.
61
S.13 (c), Ibid.
48
The Natural Disaster Management Law was enacted in 2013 after Cyclone
Nargis hit Myanmar. A National Natural Disaster Management Committee was
formed to assign the functions and duties of relevant Ministries, departments and
government organizations, and to guide, supervise and ensure effective and
expeditious implementation of disaster risk reduction.62 The law also provided for
Regional or State Natural Disaster Management Bodies to be created, comprising
the Chief Minister of the relevant Region or State as chairperson together with
suitable persons to assign duties and power.63 Relevant departments are
assigned the duties of preparatory measures, preventive measures, emergency
response plans, rehabilitation and reconstruction activities, and establishing
funding.64 Although there is no human rights provision, procedural rights, such as
information systems, rehabilitation and rescue activities, cooperation plans and
preventive measures are stipulated.

The Myanmar Forest Law was enacted on 3rd November 1992 by Notification
No.8/92. It focuses on state control and policing and does not recognize tribal or
communal ownership of forest lands but provides private and communal tenure
of various durations.65 A Community Forestry Instruction was issued in 1995;
since then there has been a gradual trend towards greater participation of local
communities in forestry matters. In accordance with the Forest Law, forest crimes
can be dealt with via forest administrative means or by prosecution in courts.
Through forest administrative means, the local forest officer uses the power of
examination and sets penalties for some forest crimes. There is no monitoring
mechanism to track successful prosecutions.

62
S.5 of the Natural Disaster Management Law, 2013.
63
S.7 of the Natural Disaster Management Law, 2013.
64
S.13 of the Natural Disaster Management Law, 2013.
65
Forest Law 1994.
49
Myanmar’s Parliament enacted anew Forest Law on 20th September 2018 and
repealed the Forest Law of 1994. The new law aims to eliminate illegal logging by
a variety of punishments, the most severe being 15 years imprisonment,66 or
fines, confiscation, and removing licenses.67 Forestry Department staff can be
punished for accepting bribes or for being involved in the extraction, transfer or
possession of illegally cut logs and forest products. Forest crime is a cognizable
offence68 and accused persons’ sentences will include damages.69 The law
stipulates that MONREC recognizes conservation of natural forests and mangrove
forests by residents using their own traditional methods. This is approved by the
Naypyitaw Council and the region, state or national government.70 By this Law,
the Government and Director General of the forestry department are responsible
for the sustainable development of forestry management, prohibition of
deforestation and loss of biodiversity, protection of mangrove forests, the
conservation and preservation of dry deciduous forests and limits on trade in
forest products.71

The Investment Law72 2016 restricts foreign and citizens’investment activities

which may cause harm to the natural environment and ecosystems.73
Responsibilities of investors are outlined in Chapter 16 of the Investment Law
2016. They must obey the regulations, notifications and procedures of the
concerned department, orders and directives;74 They shall follow the procedures
and standards for the impact on environmental, social and cultural heritages;75
They should pay adequate compensation to the victims if suffering or loss is
causedby the investment activities.76 They are responsible for carrying out

66
S.43 of the Forest Law 2018.
67
Chapter 12 of the Forest Law 2018.
68
S.48 of the Forest Law 2018.
69
S.47 (c) of the Forest Law 2018.
70
S.7 of the Forest Law 2018.
71
Chapter 3 of the Forest Law 2018.
72
Investment Law, Notification No.40/2016 on 18th October 2016.
73
S.41 (e) of the Investment Law 2016.
74
S.65 (c) of the Investment Law 2016.
75
S.65 (g) of the Investment Law 2016.
76
S.65 (o) of the Investment Law 2016.
50
environmental conservation and protection during the project in accordance with
the existing laws, managing the system to dispose industrial waste from factories,
contributing funds for corporate social responsibility (CSR) and submitting reports
to the relevant Ministries and the Myanmar Investment Commission.

In May 2018, Myanmar’s Parliament passed the “Conservation of Biodiversity

and Protected Areas Law”77 which replaced the old “Protection of Wildlife and
Conservation of Natural Areas Law” of 1994.78 This Law categorized protected
areas such as national parks, marine parks, wildlife sanctuaries etc.79 Section 8
recognizes “Community Protected Areas” as a category of protected area. The
Forestry Department is responsible fortechnical coordination and management
support for Community Protected Areas, to maintain the habitats of wild species
and to protect wildlife conservation using the traditional customs of indigenous
peoples.80 The Director General of the Forestry Department haspower, with the
approval of the Minister, to administer a buffer zone,cooperating with the local
community to maintain a balance between sustainable socioeconomic
development of local communities and the conservation of biodiversity.81

Myanmar Laws provide for natural resources to be exploited by business with

prior permission for any activities which will cause harm to the natural environment
and ecosystems.

77
The Conservation of Biodiversity and Protected Areas Law,
Notification No.12/2018 on 21st May 2018.
78
The Protection of Wildlife and Protected Areas Law, SLORC Law NO.6/94 on 8th June 1994.
79
S.7 of the Conservation of Biodiversity and Protected Areas Law 2018.
80
S.17, Ibid.
81
S.13, Ibid.
51
International Commitment for Ecosystem Conservation

Myanmar’s government fully recognizes that Myanmar’s forest areas face a

diverse and growing range of environmental challenges which can be addressed
through international agreements. Myanmar has signed 82 international
environmental agreements of which 72 are ratified but 10 are not.82 International
Environmental Law reflects the close relationship between environmental
protection and sustainable economic development. Myanmar is a founder
member of most international environmental conventions such as the Convention
on Biological Diversity (Rio Convention, or CBD), the Framework Convention on
Climate Change (UNFCCC), and the Convention on the International Trade of
Endangered Species (CITES).

International environmental laws and policies have implications for the

Environmental Impact Assessment (EIA) systems of countries that sign or
endorse them. The relevant instruments in this context fall into two main
categories. First, there are non-binding instruments, such as the Rio Declaration
on Environment and Development, which establish important principles and
aspects that may need to be reflected in EIA arrangements and approaches.
Secondly, there are legal conventions and treaties related to environmental
protection at the global and regional level. These carry various obligations for
Myanmar as a signatory country that shall be implemented, inter alia, through EIA
arrangements.83

Principle 17 of the Rio Declaration refers to EIA as a national instrument which

“shall be undertaken for proposed activities that are likely to have a significant
adverse impact on the environment and applies a precautionary approach for
threats to environmental damage”.84 If irreversible damage occurs cost effective

82
https://sedac.ciesin.columbia.edu/entri/countryProfile.jsp?ISO=MMR
83
Environmental Impact Assessment and Strategic Environmental Assessment:
Towards an Integrated Approach, Hussein Abaza, DTIE-ETB, UNEP, 2004, P-47
84
Ibid, P-32
52
measures will be taken to prevent environmental degradation.85 Myanmar
attended the Rio +20 Conference in Rio De Janeiro on 20th to 22nd June 2012 and
participated in molding the common vision.86

Myanmar fulfils its international commitments in environmental treaties in the

areas of agriculture, forests, wildlife, mineral resources, biodiversity, cultural and
natural heritage management, fisheries, hazardous waste management and
pollution problems for sustainable development without any harm to the
environment. As a result of following international environmental law, universally
accepted environmental principles such as good neighbourliness, precaution,
polluter paying, prevention, sustainable development, state sovereignty and prior
informed consent (PIC) are found in national laws and policies.

Environmental Protection Bodies

Environmental protection in Myanmar generally comes under the authority of the

National Commission for Environmental Affairs (NCEA), formed in 1990. The
National Sustainable Development Strategy (NSDS) was drawn up in 2009, part
of a broader programme of the UN Sustainable Development Commission set up
after the World Summit on Sustainable Development in 2002. Myanmar had
signed the Global Agenda 21 at the Earth Summit in Rio De Janerio in 1992 and
agreed to develop an NSDS by 2010 in line with the Millennium Development
Goals (MDGs).86 A working group for environmental protection exists, formed of
the Directors of the Forest, Mining, Meteorology, Public Health, Agriculture, Rural
Development, Industrial Coordination, Electric Power Planning, Oil and Gas and,
Road Transport Administration Departments and the Central Statistical
Organization. They have worked on the Green Growth Policy Framework and
Action Plan, a National Climate Change Policy Strategy Action Plan (2016-2030),
a National Waste Management Strategic Action Plan (2017-2030) and Myanmar’s
Sustainable Development Plan (2018-2030).

85
Principle 15 of Rio Declaration on Environment and Development 1992
86
https://sustainabledevelopment.un.org/rio20/futurewewant
53
Conclusion

The Myanmar Government, fultils its responsibility to the environment under

International Law by drafting rules, policies and laws, implementing the rules by
sub-committees, identifying environmental risk assessment by relevant ministries,
monitoring and verification of progress, providing environmental awareness
training, engaging in adequate and timely communication and consultation with
the communities directly affected by environmental impacts. National and
international legal frameworks have been developed to achieve environmental
rights in a sustainable manner by providing substantive rights and procedural
rights. In order to minimize the risk of harm to the environment and human rights,
Myanmar still needs to support the legal remedy of a human rights development
approach. There is also a necessity and imperative to cooperate in environmental
incidents and to extend humanitarian assistance to areas where the environment
is negatively impacted.

References

Books
(1) Burma’s Environment: People, Problems, Policy, 2011
(2) Forestry policies, legislation and institutions in Asia and
the Pacific, Yurdi Yasmi, Jeremy Broadhead,
Thomas Enters and Cole Genge, 2010
(3) Hussein Abaza, Environmental Impact Assessment and
Strategic Environmental Assessment: Towards an Integrated
Approach, DTIE-ETB, UNEP, 2004
(4) Interim Country Partnership Strategy: Myanmar, 2012-2014,
Asia Development Bank, 2014
(5) Joint Typhoon Warning Center (2008).
"Cyclone Nargis Warning NR 023". Retrieved 2 May 2008
(6) Peter Leimgruber, Forest Cover Change Patterns in Myanmar
1990-2000

54
Laws
(1) Myanmar Mines Law 1994
(2) Notification No. 26/94 on 5th December 1994,
the Government of the Union of Myanmar
(3) Myanmar Pearl Law 1994
(4) Constitution of the Republic of the Union of Myanmar, 2008.
(5) Environmental Conservation Law 2012
(6) Environmental Impact Assessment Rule 2012
(7) Natural Disaster Management Law, 2013

Newspaper
(1) Myanmar Ahlin Newspaper, Volume 52, Number 163,
12th March, 2013

Websites
(1) https://tradingeconomics.com/myanmar/forest-area-sq-km-wb-data.
html
(2) https://sedac.ciesin.columbia.edu/entri/countryProfile.jsp?ISO=MMR
(3) www.earthrightsinternational.com
(4) www.un.org/es/agenda/21/natlinfo/countr/myanmar/eco.htm

55
56
Myanmar Laws & Mechanisms
to Address Cases Involving
Flora & Fauna Trafficking

Marla Bu
Consultant in International Law

Introduction

Myanmar is rich in flora and fauna. It boasts 258 mammal species (Megafauna),
153 reptile species, 1056 bird species (Avifauna), 775 marine and fresh water
fish species (Piscifauna, Microfauna) and 11,800 plant species (flora).88 As part of
government attempts to protect this vast diversity, 42 Protected Areas88 have
been instituted. This chapter will discuss flora and fauna in Myanmar in terms of
existing laws to prevent trafficking, and their enforcement. Matters relating to
general environmental law are discussed elsewhere in this handbook.

87
Wildlife Crimes in Myanmar. Supreme Court of the Union of Myanmar, International Relations Unit,
Research Department. Daw Aye Aye Hlaing, Deputy Director
88
Assuming Chapter 1 and 2 will discuss definition of Protected Area further
57
The importance of environmental conservation is highlighted in Myanmar’s 2008
Constitution. The government is duty-bound to “protect and conserve the natural
environment”89, and citizens must “assist the Union in carrying out … matters
[relating to] (a) preservation and safeguarding of cultural heritage; (b)
environmental conservation; (c) striving for development of human resources;
and (d) protection and preservation of public property”.90

Myanmar is attuned to the necessity to defend its flora and fauna; it has legal
mechanisms in place to protect and conserve its biodiversity and safeguard its
environment. The country’s dedication to stewardship of its nature and wildlife
ensures a degree of protection of the environment. More recently, such efforts
have involved local communities and provided them with opportunities to discuss
their concerns. While there have been successes in combating flora and fauna
trafficking, a number of challenges remain.

Flora

• What is Flora?

Flora is a term used to refer to a group of indigenous plants in an ecosystem of a

geographical region. Myanmar’s flora exists within the geographical regions of
the country’s seven states and seven divisions where trees, plants, and flowers
that are indigenous to these areas form their own unique and identifiable
ecosystem. They are native plants to the area. They grow in different regions with
varying climates that affect their nature and definitions.

Flora in Myanmar that are distinct to the country include plants such as Zingiber
barbatum (meik-thalin), a therapeutic ginger found in Yangon, Bago and
Mandalay; Strobilanthes dyeriana, the Persian shield, a tropical evergreen shrub;
or Pachystoma nutans, a member of the orchid family, found in Shan State. There
are also mangroves, seagrass beds, and seaweed, or algae, such as Ulva
burmanica, a green alga that is found in Bago. The tree population is vast and
complex. These are, of course, only a few examples of the nation’s botanical
diversity.

89
Constitution of the Republic of the Union of Myanmar 2008, Article 45
90
Ibid Article 390
58
Fauna

• What is Fauna?

Fauna is a term referring to a group of indigenous animals of any geographical

region. Myanmar’s Fauna exists in the geographical regions of our seven states
and seven divisions where distinct animals indigenous to these states and
divisions form their own unique and identifiable ecosystem.

Myanmar’s unique fauna includes tigers, red pandas and elephants, the Sumatran
and Javan rhinoceros (Dicerorhinus sumatrensis, docerorhinus sondaicus), the
Indian water buffalo (Bubalus arnee) or the Snub-nosed monkey (Rhinopithecus
strykeri), which inhabits Mount Imawbum. Fish species of interest include the
Irrawaddy dolphin (Orcaella brevirostris) or the Nga Tha Lauk (Hilsa ilish). Among
reptiles, the Burmese star tortoise (Geochelone platynota) deserves mention,
while the bird population includes Jerdon’s minivet (Pericrocotus albifrons), or the
Burmese bush lark (Mirafra microptera). Many of these species thrive on Lake
Indawgyi, a Ramsar Site and UNESCO Biosphere Reserve.

• Current trafficking situation for fauna

Trafficking of wild animal parts is a multi-million dollar business. Harvesting and

trading of wild species and their body parts reflects a huge demand throughout
Asia, especially for supposed medicinal purposes. Due to Myanmar’s abundant
wildlife, the country is targeted by animal poachers who seek to make lucrative
trade with parts of tigers, elephants, pangolins and other species. Proximity to the
Golden Triangle region facilitates illegal trafficking in the region with easy access
to China and to other parts of Southeast Asia through Thailand and Laos, the
other two border countries of the Golden Triangle.

59
According to Myanmar’s Ministry of Environmental Conservation and Forestry91,
the Asian elephant (Elephas maximus) and the tiger (Panthera tigris) are the
main targets of illegal trafficking which has resulted in a sharp decline in their
population in Myanmar. Other mammals also undergoing the same fate are the
black musk deer (Moschus fuscus), Chinese and Malayan pangolins (Manis
pentadactyla, javanica), and the sunbear (Healarctos malayans). The
government’s efforts to support the wildlife sanctuaries have shown an
improvement in population numbers for some of these animals, but challenges
remain.

The Legal Framework

(A) Laws on Environmental Protection in Myanmar

Please refer to Chapter 1 on the general legal landscape and Chapter 2 on

international legal frameworks, such as the Convention on International Trade in
Endangered Species of Wild Fauna and Flora also known as the Washington
Convention (CITES).

The following is a list of some of the relevant laws, rules and notifications that
prevail in Myanmar.

• Forest Law of 1992, revised in 2018 to impose tougher penalties for

offenders of up to 15 years imprisonment.
• Elephant Preservation Act (1879)
• Protection of Wildlife Act (1936)
• Protected List of Wildlife (1994) (PLW)
• Protection of Wildlife and Protected Areas Law (1994) – PWPAL
• Community Forest Instructions (1995). These promoted more
community participation in forestry decision making.
• Law Relating to Aquaculture (1989)

Ministry of Environmental Conservation and Forestry, Report,

91

March 2014, Nay Pyi Taw7 -=tyu,mjkl;’lk

60
 •
Pesticide Law (1990)
•
Freshwater Fisheries Law (1991)
•
Law Relating to Fishing Rights of Foreign Fishing Vessels (1989,
amended in 1993)
• Myanmar Marine Fisheries Law (1990, amended in 1993). The law
established conditions, prohibitions, orders and directives relating to
the conservation and protection of the fisheries. The amendment in
1993 covers the offences and penalties related to the prohibitions
outlined under the 1990 law.
• Myanmar Mines Law (1994)
• Plant Pest Quarantine Law (1993, amended in 2011)
• Fertilizer Law (2002)
• Conservation of Biodiversity and Protected Areas Law (2018)
(Replaced The Protection of Wildlife and Wild plant and Nature Areas
of Law (1994), Rules (2002))
• Myanmar’s Wildlife Protection and Protected Areas Law 1994, revised
and enacted on 21 May 2018.
• Environmental Conservation Law (2012) and the Environmental
Conservation Rules (2014) – ECL, ECR
• Animals Health and Development Law (2012) The Forest Rules (1995)
• Conservation of Water Resources and Rivers Law (2017)
• Biodiversity and Conservation of Protected Areas Law (2018).
Regulates the trade of wild animals, plants and their derivatives and
products; establishes seven categories of Protected Areas (scientific
reserve, national park, marine national park, nature reserve, wildlife
sanctuary, geo-physically significant reserve, and local community
Protected Areas.

As can be seen above, Myanmar has extensive legislative texts on environmental

protection. However, establishing effective governance and enforcement, along
with community engagement in matters affecting the environment, continue to
pose challenges to environmental conservation and protection.

61
The main legal framework for environmental conservation is the Environmental
Conservation Law (2012). This law provides guidance on the regulation of the
private sector by instituting a permit system to ensure that businesses operate in
a manner that protects Myanmar’s flora and fauna. In practice, this means all
companies must undergo an Environmental Impact Assessment Procedure
(EIA)92 by MONREC to assess their environmental and social impact. If approved,
the Ministry issues an Environmental Compliance Certificate (ECC) which is valid
for 5 years, and the company can commence operating.

The Ministry may not issue the ECC if there is “Adverse Impact” which is defined
as “any adverse environmental, social, socio-economic, health, cultural,
occupational safety or health, and community health and safety effect suffered or
borne by any entity, natural person, ecosystem or natural resource, including but
not limited to, the environment, flora and fauna, where such effect is attributable
to any degree or extent to, or arises in any manner from, any action or omission
on the part of the Project Proponent, or from the design, development,
construction, implementation, maintenance, operation, or decommissioning of
the Project or any activities related thereto”.93

The lead Ministry

The Ministry of Environmental Conservation and Forestry (MOECAF), formed

from the Ministry of Forestry in 2011 and responsible for protecting the flora and
fauna of Myanmar, has since been renamed as the Ministry of Natural Resources
and Environmental Conservation (MONREC).

92
MOECAF (2012). The Environmental Conservation Law.
The Republic of the Union of Myanmar, Ministry of Environmental Conservation and Forestry.
93
ibid
62
The Ministry comprises the following departments:

(1) Planning and Statistics

Responsible for monitoring the implementation of the policies and
targets of the projects undertaken by the Ministry. This department
also coordinates the collection of the statistics, and promotion of
Myanmar’s activities on international platforms through liaison with
international organizations.
(2) Environmental Conservation
Responsible for implementing the strategy, policies and framework of
environmental sustainable development.
(3) Forestry – has a Nature and Wildlife Conservation Division which
oversees 20 Parks and Sanctuaries as protected areas.
Responsible for protecting Myanmar’s forests and natural resources
in a sustainable manner.
(4) Myanmar Timber enterprise
In charge of harvesting and processing Myanmar timber.
(5) Dry Zone Greening Department
Has the goal of greening the central Myanmar dry zone and protecting
and maintaining the 20 million acres of dry forests in central Myanmar.
(6) Survey Departments
Responsible for mapping the topography of Myanmar for the purpose
of furthering the Ministry’s work.

Please refer to Chapter 1 and Chapter 2 for further details on the institutional
framework of Myanmar’s government and legal system.

MONREC’s duties and powers are set out in the Environmental Conservation
Law (2012) and the Environmental Conservation Rules (2014). MONREC also
works with the following ministries in fulfilling its constitutional mandate to protect
Myanmar’s environment:

63
 • Ministry of Agriculture and Irrigation
• Ministry of Livestock, Fisheries and Rural Development
• Ministry of Science and Technology
• Ministry of National Planning and Economic Development
• Ministry of Mines
• Ministry of Health

The Environmental Conservation Committee (ECC) was formed in 2011 in order

to strengthen the synergy between the ministries in safeguarding Myanmar’s
environment. With MONREC’s minister as Chairman and the deputy ministers of
other relevant ministries as members, ECC’s objective is to follow policy on
environmental protection, act as a regulator for assessing environmental damage
and promote activities to conserve the environment in Myanmar through education
programmes.

The ECC is organized into five working committees (WC) and five special task
forces (STF):

• Policy, Law, Rules, Procedures and Quality Standards (WC)

• Industry Planning, Urban and Rural (WC)
• Natural Resource and Cultural Heritage Conservation (WC)
• Climate Change Adaptation and Migration (WC)
• Environmental Education and Awareness Raising (WC)
• Land Use (STF)
• Rivers, Streams and Wetlands (STF)
• Industrial Projects, Large Industries and Urban and Rural Areas (STF)
• Environmental Policy, Law and Procedures (STF); and
• Environmental Education and Awareness; Climate Change

64
Myanmar National Wildlife Law Enforcement Task Force

Formed in 2011, the body implements an action plan to combat poaching and
illegal trade in cooperation with local and international organizations, to comply
with the Convention on International Trade and Endangered Species of Wild
Fauna and Flora (CITES), a multilateral treaty to protect endangered plants and
animal species. Its main purpose is to close loopholes in existing laws to give
Myanmar a strong illegal wildlife trade law.

CITES

CITES is the Convention on International Trade in Endangered Species of Wild

Fauna and Flora. It is an international agreement between governments. CITES
is among the conservation agreements with the largest membership, and there
are now 183 State Parties.

Because the trade in plants crosses national borders, the effort to regulate it
requires international cooperation to protect certain species from over-exploitation.
The purpose of the Convention is to ensure that international trade in specimens
of wild animals and plants does not threaten their very survival. International
wildlife trade is estimated to be worth billions of dollars annually, and to include
hundreds of millions of plant specimens.

Today, CITES accords varying degrees of protection to thousands of species of

plants, whether they are traded as live specimens or dried herbs. Since 2017,
each Party is required to submit an annual illegal trade report on all seizures for
violations involving CITES-listed species, irrespective of where and how the
seizure was made.

CITES was drafted in 1963 at a meeting of members of IUCN (The World

Conservation Union). Although CITES is legally binding on the Parties it does not
take the place of national laws. Rather it provides a framework to be respected by
each Party, which has to adopt its own domestic legislation to ensure that the
Convention is implemented at the national level.

65
Myanmar joined CITES in July 1997, and the Convention entered into force in the
country on 11 September 1997. In 2011, Myanmar chaired the 5th annual meeting
of ASEAN-Wildlife Enforcement Networks.

Signs of Progress

There are initial signs of a growing public understanding of issues relating to

conservation. For example, markets in Yangon (Bogyoke and Shwe Dagon)
agreed to end the sales of ivory and other wildlife products across the country as
of April 2018. Yangon City Development Committee also pledged to work towards
an “IWT- free Yangon”.94

Law enforcement officials are being trained to identify and seize wildlife products
that are obtained through illegal means.

The most recent law, the Conservation of Biodiversity and Protected Areas Law
(2018), addressed the concern over local communities being affected by the
environmental discussions and plans, adding a new category of protected area
called “Community Protected Area” which requires the Forest Department under
MONREC to provide technical coordination and support for management of the
said area.

Generally, there are three categories of protection for wildlife in Myanmar defined
under the Forest Department Notification NO. 583/94.95 They are as follows:

94
WWF. Website: wwf.org.mm
95
Forest Department (1994). Forest Department Notification No. 583/94(1994)
66
 •
Category 1: Completely protected wildlife96 which is a category of
endangered species as announced by the Ministry of Forestry from
time to time.
Includes 39 species of mammals, 50 species of birds, and 9 species
of reptiles and amphibians.
• Category 2: Normally protected wildlife97 which is a category of
endangered species as announced by the Ministry of Forestry from
time to time.
Includes 12 species of mammals, 43 species of birds, and 6 species
of reptiles and amphibians.
• Category 3: Seasonally protected wildlife98 (from 15 June to 30
September) which is a category of endangered species as announced
by the Ministry of Forestry from time to time.
Includes 2 species of mammals, 13 species of birds.

NB. The Ministry of Forestry decides when to place an animal in one of these
categories.

The most recent law is the Conservation of Biodiversity and Protected Areas Law
which repealed the Protection of Wildlife and Conservation of Natural Areas of
Law (1994).

(B) National and Regional Collaboration

Myanmar has always been mindful of protecting its own natural resources,
biodiversity and environment. Through Myanmar National Wildlife Law
Enforcement Task Force has been quite active in protecting its biodiversity in the
country, the challenge lies in enforcement of illegal poaching, in particular of
protected species since they are in high demand within the region, especially
from China.

96
Article 2(u) Conservation of Biodiversity and Protected Areas Law (2018)
97
Article 2(v) Conservation of Biodiversity and Protected Areas Law (2018)
98
Article 2(w) Conservation of Biodiversity and Protected Areas Law (2018)
67
This challenge is not unique to Myanmar as its neighbouring countries also face
difficulty in enforcement against smuggling of items from endangered species
such as rhinoceros horns and elephant ivory. The porous borders and lack of
enforcement combined with command of a high market value for these
endangered and rare species are too tempting for the poachers. This has made
it difficult for the regional authorities to enforce the protection of their endangered
species.

Legal Enforcement

The Supreme Court of the Union of Myanmar provides the means by which illegal
traffickers of flora and fauna are charged under the current Myanmar legal
system.

Forest
Sends to
Ranger
police to
discover
investigates
traffickers

Forestry
• Conducts prosecution
Dept. or
• Reports to the Ministry
Courts
• Court tries as criminal
proceeding

Sentencing
• Fine
• Prison punishment

68
Chargeable Offences

Under PWPAL, (Art. 36), the act of killing, hunting or wounding a protected wildlife
species, or removing, collecting or destroying in any manner any protected wild
plant within a designated area without permission is an offence under Myanmar
law and carries punishment by imprisonment for a term which may extend to 5
years or a fine of up to 30,000 Kyats, or both.99

Under PWPAL, (Art. 37), the act of killing, hunting, possessing, selling,
transporting, wounding or exporting a completely protected wildlife species
without the recommendation of the Director General, carries punishment by
imprisonment for a term which may extend to 7 years or a fine of up to 50,000
Kyats, or both.

Practical Results

There was a total of 143 recorded cases countrywide of illegal flora and fauna
trafficking from 2010 to 2013. During the same time period, there were 41 wild
elephant carcass reports.

Criminal cases on flora actually prosecuted in Myanmar courts under the

Protection of Wild Life and Protected Areas Laws (1994) between 2000 and 2014
amounted to 294. Of these prosecutions, 38% resulted in imprisonment, 53% in
fines, and 53% in confiscations. 18% of the cases are still pending before the
courts.

During the same period, for fauna, a total of 247 cases were brought before the
Myanmar courts of which 61.5% resulted in imprisonment, 44.5% in fines, and
43% in confiscations. 13% of the cases are still pending before the courts.100

99
Amendments have been made on the penalty for extracting or destroying any kind of wild plants by the
Conservation of Biodiversity and Protected Areas Law 2018 which increases the fine of 30,000 Kyats to
a fine of up to 1,000,000 Kyats or up to 5 years of imprisonment (See Paragraph 40)
100
Office of the Supreme Court of Myanmar

69
Fiscal Year Cases(Total) Seized Itemsg
2008 - 2009 34 Turtles and tortoises, Elephant carcass,
Elephant tusks, Elephant skin, Sambar
horns, Sambar skin, Goral skin, Snakes,
Birds, Gekkos and Pangolin scales

2009 - 2010 31 Turtles and tortoises, Bear, Bear claws,

Elephant tusks, Elephant skin, Tiger teeth,
Sambar skin, Sambar horns, Snakes,
Birds, Pangolin scales, Pangolin, Orchids,
Handmade guns and gunpowder

2010 - 2011 30 Turtles and tortoises, Elephant tusks,

Elephant skin, Pangolin skin, Pangolin,
Tiger teeth, Sambar skin, Sambar horns,
Snakes, Birds, Marbled cat skin, Civet
skin, Python scales, Golden cat skin and
taxidermy, Golden cat, Gaur horn, Clouded
leopard skin, Birds, Gekko, Goral skull,
Goral horn

2011 - 2012 21 Elephants, Elephant tusks, Elephant skin,

Turtle and tortoises, Pangolin scales,
Birds, Sambar horns, Goral horns, Snakes,
Bear bones, Bears, Hog deer teeth, Goral
teeth, Bear teeth, Handmade guns
2012 - 2013 59 Elephants, Elephant tusks, Elephant skin,
Turtle and tortoises, Pangolin scales,
Birds, Sambar horns, Goral horns, Snakes,
Bear bones, Bears, Hog deer teeth, Goral
teeth, Bear teeth, Handmade guns,
Orchids

70
From the Supreme Court statistics above, it is evident that the legal system of
Myanmar has, to its credit, been active in pursuing the illegal traffickers of
Myanmar’s flora and fauna. The proportion of unlawful poaching and trafficking
activities remaining undocumented and therefore outside the purview of law
enforcement are a matter for conjecture. The table gives an idea of the range of
items seized between 2008 and 2013.101

Conclusion

It is evident that there are many legal provisions in force to defend Myanmar’s
flora and fauna from predatory activities. There are also a number of ministries
that play a part in safeguarding Myanmar’s natural environment from illegal
trafficking activities. While the accountability of various ministries to protect
Myanmar’s environment is admirable, the degree to which responsibilities are
decentralized merits further review. There is scope for reform of the mechanisms
available to enforce laws on illegal trafficking of flora and fauna in Myanmar. The
laws tend to be drafted in overly generic terms, while financial penalties for
breaking the law are often lenient. The profitability of illegal trafficking largely
exceeds the legal penalties. These are areas that the government could
concentrate on in modernization efforts. Some of these needs may already be
met by the National Biodiversity Strategies and Action Plans (NBSAPs) adopted
in 2011 and revised in 2015. They include a 2015 – 2030 strategy plan to build
the capacity of law enforcement authorities to enforce wildlife trafficking
regulations. Time will tell if they are successful.

101
Ibid
71
Further Sources:

Ministry of Natural Resources and Environmental Conservation -

http://monrec.gov.mm/
Supreme Court of the Union of Myanmar -
http://www.unionsupremecourt.gov.mm/
Flora & Fauna International (FFI) -
https://www.fauna-flora.org/countries/myanmar
World Wide Fund for Nature (WWF) -
https://www.worldwildlife.org/
Myanmar Responsible Business (MCRB) -
https://myanmar-responsiblebusiness.org/

72
Myanmar’s Legal Framework for
Air and Water Pollution Control

William (BJ) Schulte, JD, LLM

Mekong Region Policy and Legal Advisor
EarthRights International

Myanmar has established a fairly robust system of laws, regulations and

guidelines for the control and prevention of air and water pollution. This system
begins with the 2008 Constitution, and is implemented through the laws and
regulations that were adopted pursuant to the duty placed on the Pyidaungsu
Hluttaw (Hluttaw) in the Constitution to “protect and conserve [the] natural
environment.”102 In 2012 the Hluttaw passed the Environmental Conservation
Law (ECL) in order to implement this duty.103 Subsequent to the passage of the
ECL, Myanmar’s Ministry of Natural Resources and Environmental Conservation
(MONREC) issued several rules and regulations designed to control pollution
and conserve the environment. As will be seen, the Hluttaw has also adopted
several other laws with important provisions relating to pollution control.

102
Constitution of the Republic of the Union of Myanmar, Sec. 45 (2008).
103
Environmental Conservation Law, No. 9/2012 (2012).
73
The Environmental Conservation Law and
the Framework for Pollution Control

Myanmar’s Environmental Conservation Law does not contain substantive

standards with regard to environmental protection – rather, its main objective is to
establish the overall framework that the government must follow to adopt and
implement measures to protect and conserve the natural environment. Notably,
the ECL contains rather broad definitions of the terms “pollution” and “pollutant.”
Pollution is defined as:

“…any direct or indirect alteration, effect of the physical, thermal,

chemical or biological properties of any part of the environment
including land, water and atmosphere by discharging, emitting or
depositing environmental hazardous substances, pollutants or wastes
so as to affect beneficial use of environment, or to affect public health,
safety or welfare, or animals and plants or to contravene any condition,
limitation or prohibition contained in the prior permission issued
under this Law”.104

The ECL defines “pollutant” as any “…solid, liquid, or vapor which directly or
indirectly alters the quality so as to affect beneficial use of any segment or
element of the environment or is hazardous or potentially hazardous to health or
causes pollution”.105 By defining these terms so broadly, the Hluttaw granted the
government broad discretion and decision-making authority to determine which
air and water pollutants to regulate. Subsequent to the granting of this authority
through the ECL, MONREC developed and issued the Environmental
Conservation Rules,106 the Environmental Impact Assessment Procedure,107 and
the Environmental Quality (Emissions) Guidelines.108 These will be explained in
further detail below.

104
Environmental Conservation Law, Sec. 2(e).
105
Environmental Conservation Law, Sec. 2(g).
106
Environmental Conservation Rules, No. 50/2014 (2014).
107
Environmental Impact Assessment Procedure, No. 616/2015 (2015).
108
Environmental Quality (Emissions) Guidelines (2015).
74
The government body with primary responsibility for implementing the ECL is
MONREC. The ECL also establishes and defines the functions of two other
bodies with important roles with regard to pollution functions: the Environmental
Conservation Committee (Committee)109 and the Environmental Conservation
Department (ECD).110 The Committee is essentially an advisory body that
provides advice and approvals to MONREC and ECD on various issues, and the
ECD is a Department formed under MONREC that is charged with carrying out
various specific tasks under the guidance of MONREC.111

MONREC’s main duties with respect to pollution prevention and control are laid
out in Section 7 of the ECL. Section 7(d) obligates MONREC to develop
“environmental quality standards including standards on emissions, effluents,
solid wastes, production procedures, process and products for [the] conservation
and enhancement of environmental quality.” Relatedly, Section 7(j) directs
MONREC to “prescribe the terms and conditions related to effluent treatment in
industrial estates and other necessary places and buildings and emissions of
machines, vehicles and mechanisms.” Such terms and conditions may include
requiring a project or activity that causes pollution to “compensate for
environmental impact”.112 As explained below, these standards and conditions
are applied to projects and activities primarily through Myanmar’s environmental
impact assessment system, which MONREC has a duty to establish under
Section 7(m) of the ECL.

Section 7(c) obligates MONREC to “lay down and carry out” monitoring programs
for the purpose of pollution control. This duty is defined with greater detail in
Section 13 of the ECL, which directs MONREC, under the guidance of the
Committee, to maintain a “comprehensive monitoring system” on various pollution
issues. These include, but are not limited to, the use of agro-chemicals; handling
of pollutants and hazardous wastes in industry; handling of wastes in the mineral
and gems extractives sector; and construction and development. Under the terms

109
Environmental Conservation Law, Sec. 4.
110
Environmental Conservation Law, Sec. 2(s).
111
See Environmental Conservation Rules, Sec. 23(b).
112
Environmental Conservation Law, Section 7(o).
75
of the Environmental Conservation Rules, all of the measures and programs
mentioned above for controlling and reducing pollution in the environment are
supposed to be approved by the Committee.113

In addition to establishing the functions and duties of MONREC, the Committee

and ECD, the ECL also places affirmative duties on persons and business that
cause point sources of pollution. Under Section 14 of the ECL, “a person causing
a point source of pollution shall treat, emit, discharge and deposit the substances
which cause pollution in the environment in accord with the stipulated
environmental quality standards”. Under Section 15, “the owner or occupier of
any business, material or place which causes a point source of pollution shall
install or use an on-site facility or controlling equipment in order to monitor,
control, manage, reduce or eliminate environmental pollution. If it is impracticable,
it shall be arranged to dispose the wastes in accord with environmentally sound
methods”. In addition to the ECL, the Myanmar Investment Law requires that
investors “abide by applicable laws, rules, procedures and best standards
practiced internationally for this investment so as not to cause damage, pollution,
and loss to the natural and social environment…”114

The two Sections of the ECL identified above raise some important issues and
questions. The first issue is that these two Section only address “point sources”
of pollution. Although the term “point source” is not defined anywhere in Myanmar’s
environmental legal framework, it is normally used in reference to water pollution,
and is generally understood to refer to discrete and identifiable sources of water
pollution, such as wastewater discharge pipes.115 In contrast, non-point source
water pollution is generally understood as pollution that results from “land runoff,
precipitation, atmospheric deposition, drainage, seepage or hydrologic

113
Environmental Conservation Rules, Sec. 16(a).
114
Myanmar Investment Law, No. 40/2016 (2016), Sec. 65(g).
115
For example, the United States Clean Water Act defines “point source” as “any discernible, confined
and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other
floating craft, from which pollutants are or may be discharged. This term does not include agricultural
stormwater discharges and return flows from irrigated agriculture.” United States Clean Water Act,
Section 505.
76
modification”.116 Examples of non-point source water pollution include chemicals
used in agricultural and residential areas and “sediment from improperly managed
construction sites, crop and forest lands, and eroding streambanks”.117 Due to the
nature of non-point source water pollution, it is notoriously difficult to identify and
regulate. Although the ECL itself does not explicitly address the issue of non-
point source water pollution, MONREC has taken steps to do so by requiring
traditional non-point sources such as agricultural operations undergo
environmental impact assessment118 and apply industry-specific pollution
standards under the National Environmental Quality (Emissions) Guidelines
(NEQG).119

The second issue has to do with Section 15 of the ECL, which states that if it is
“impracticable” to install on-site pollution control equipment for a given point
source of pollution, then “it shall be arranged to dispose the wastes in accord with
environmentally sound methods”. This provision raises questions regarding
exactly how to determine whether installing pollution control is “impracticable”,
and also how to determine valid “environmentally sound methods” for pollution
and waste disposal. Making such determinations requires fact-based, case-by-
case analyses that necessarily involve substantial time and resources on the part
of a regulatory body such as the ECD. This issue is reflected in other areas of
Myanmar’s environmental framework. For example, Section 3 of the NEQG
states that “application of these Guidelines to existing facilities may involve the
establishment of site-specific targets, with an appropriate timetable for achieving
them”. Although MONREC and the ECD have made considerable progress in
recent years to strengthen their capacity for regulating environmental pollution, it
may be some time before they are able to adequately implement provisions such
as these.

116
“Basic Information about Nonpoint Source (NPS) Pollution,” United States Environmental Protection
Agency. Available at https://www.epa.gov/nps/basic-information-about-nonpoint-source-nps-pollution.
117
Ibid
118
See, e.g., Environmental Impact Assessment Procedure (2015), Annex 1.
119
National Environmental Quality (Emissions) Guidelines (2015), Annex 1(2.2).
77
Applying Pollution Control Requirements through the
Environmental Impact Assessment System

As mentioned, Myanmar’s environmental pollution standards are applied to

projects and activities primarily through Myanmar’s environmental impact
assessment system. The Environmental Impact Assessment Procedure (EIA
Procedure), adopted by MONREC in 2015, broadly applies to any project or
activity in Myanmar that has the potential to cause adverse environmental
impacts.120 Simply put, EIA is a process to predict and analyze the potential
environmental impacts of a project or activity and identify appropriate measures
to mitigate or eliminate such impacts. The first step in Myanmar’s EIA procedure
is the submission of a screening application by the project proponent. The ECD
will determine the appropriate level of review based on this application. Projects
that are smaller in size or scope that have lower potential environmental impacts
will be required to conduct an Initial Environmental Examination (IEE), and larger
projects with a high degree of potential impacts will be required to conduct a full
Environmental Impact Assessment.121 Both IEE and EIA type projects are required
to develop an Environmental Management Plan (EMP) that describes the
mitigation measures that will be applied to reduce or eliminate environmental
impacts, including air and water pollution.122 Additionally, both IEE and EIA reports
must identify the relevant pollution standards adopted by the government that are
applicable to the project.123

Upon completion of the IEE or EIA Report, the project proponent will submit the
report to the ECD for review and approval. For EIA-type projects, prior to approval
the ECD must also submit the report to the EIA Report Review body for “comments
and recommendations”.124 Under the terms of the EIA Procedure, when the EIA
Report Review Body is asked to review an EIA Report, it must produce an EIA

120
Environmental Impact Assessment Procedure (2105), Sec. 3.
121
EIA Procedure, Sec. 23.
122
EIA Procedure, Secs. 36 and 63.
123
EIA Procedure, Secs. 36(h), 59 and 63
124
EIA Procedure, Sec. 67(a).
78
Review Report that assesses, among other things, whether the EIA Report has
adequately identified and addressed all applicable environmental and pollution
control requirements.125 If the ECD finds that the IEE or EIA Report meets all
relevant procedural and substantive requirements, the ECD will approve the
report and develop and issue an Environmental Compliance Certificate (ECC) for
the project.

The Environmental Compliance Certificate and

National Environmental Quality Guidelines

The ECC is a document that has legal effect and that contains all of the legally
binding requirements that apply to the project or activity for which the ECC is
being issued. The EIA Procedure grants the Ministry discretion to include a
variety of conditions relating to air and water pollution in a project’s ECC.126 For
example, the Ministry may impose conditions for emissions, including: “(i)
emissions not allowed, (ii) Emission Limit Values in terms of types, substances,
loads, concentrations, rates, timing, duration, frequency, seasons, and Project
phase, (iii) Emission points, (iv)form and media, (v) recipients, (vi) contribution to
Environmental Quality Standards, and (vii) statistical methods for determining
compliance”.127 The Ministry may also impose conditions specifically related to
pollution prevention, including conditions on the “effectiveness of production or
construction methods or waste storage and treatment facilities to prevent or…
minimize the risk of pollution”128 and conditions on the “control and maintenance
of pollution prevention/minimization measures”.129 Finally, the Ministry may
include requirements in the ECC that the project owner pay charges or fees for
pollutant emissions that would serve as contributions to the Ministry’s
Environmental Management Fund.130

125
EIA Procedure, Sec. 16.
126
See, EIA Procedure, Sec. 91.
127
EIA Procedure, Sec. 91(d).
128
EIA Procedure, Sec. 91(d).
129
EIA Procedure, Sec. 91(k).
130
EIA Procedure, Sec. 91(p).
79
In setting limits for the emissions of air and water pollutants, both the project’s
Environmental Management Plan (EMP) and the project’s ECC must include and
apply both the general and the industry-specific emissions standards contained
in the Annex to the NEQG.131 The NEQG state that the emissions limits contained
therein are "generally considered to be achievable in new facilities by existing
technology at reasonable costs”.132 However, for projects that already existed at
the time of adoption of the NEQG, the Ministry has the discretion to apply “less
stringent levels or measures than provided for in these Guidelines…as
appropriate”.133 The NEQG contain a comprehensive list of industry-specific
standards in Section 2 of the Guidelines, including to standards for the energy
sector, the agriculture and livestock sectors, and manufacturing, among others.
These sectors are further broken down by specific project type. For example, a
thermal power project, which includes “combustion processes fueled by gaseous,
liquid, and solid fuels and biomass and designed to deliver electrical or mechanical
power, steam, heat or any combination of these,” must apply both the general
emissions standards in Section 1 of the NEQG Annex, as well as the industry-
specific standards for thermal power projects contained in Section 2.1.1 of the
NEQG Annex.

Monitoring, Reporting and Penalties

Once the pollution standards are established in the ECC by application of the
applicable general and industry specific guidelines in the NEQG, the project
proponent is obligated to engage in “continuous, proactive and comprehensive”
monitoring of all adverse impacts associated with the operation of the project, as
well as compliance with the pollution standards in the ECC.134 The project
proponent is also required to notify MONREC of any violations of the ECC’s
pollution standards in two ways. First, the proponent must notify MONREC of any
violations in writing within seven days of becoming aware of the violation.135
However, if the violation “would have a serious impact or where the urgent

131
National Environmental Quality (Emission) Guideline, Sec. 6.
132
National Environmental Quality (Emission) Guideline, Sec. 3.
133
National Environmental Quality (Emissions) Guideline, Sec. 11.
134
EIA Procedure, Sec. 106; see also National Environmental Quality (Emissions) Guideline, Sec. 12.
135
EIA Procedure, Sec. 107.

80
attention of the Ministry is or may be required,” the project proponent must notify
MONREC within 24 hours.136 Second, the project proponent must submit
monitoring reports to MONREC at least every six months, or more frequently if
MONREC requires.137 Among other things, the monitoring reports submitted to
MONREC must include all “monitoring data of environmental parameters and
conditions as committed in the EMP or otherwise required”,138 and also must
include documentation of compliance, as well as non-compliance with the
conditions set forth in the EMP and ECC.139 As noted earlier, the project’s EMP,
as well as the ECC, must include and apply all of the relevant general and industry
specific pollution standards in the NEQG.

Finally, in addition to the project proponent’s obligations to conduct self-monitoring

and report to MONREC on instances of non-compliance with pollution standards,
MONREC is also authorized to monitor and inspect projects “in order to control
and determine compliance by the Project with all applicable environmental…
requirements”.140 If MONREC determines after inspection that the project is not in
compliance with any of the conditions set forth in the ECC, including pollution
emissions standards, MONREC is authorized to require the project proponent to
“undertake remedial measures,” pay fines, or both. If fines or penalties are
assessed against a project proponent, they are paid “in addition to any costs of
remediation, clean up, and compensation that may be incurred by the Ministry”.141
Furthermore, the payment of penalties by the project proponent for violations of
pollution standards does not relieve the proponent of liability for claims brought
by third parties for damages that resulted from that violation.142 Annex 3 to the EIA
Procedure contains a detailed schedule for different types of violations and their
associated penalty amounts.

136
EIA Procedure, Sec. 107.
137
EIA Procedure, Sec. 108.
138
EIA Procedure, Sec. 109(f).
139
EIA Procedure, Sec. 109(a) and (d); see also National Environmental Quality (Emissions) Guideline,
Sec. 12.
140
EIA Procedure, Sec. 111.
141
EIA Procedure, Sec. 127.
142
EIA Procedure, Sec. 128.
81
Dealing with Transboundary Pollution

One final issue to address is that of transboundary environmental pollution. Air

and water pollution are not confined by international borders. Since Myanmar
shares borders with five countries (Bangladesh, India, China, Lao PDR and
Thailand), it is important to consider Myanmar’s obligations under international
law with respect to transboundary air and water pollution and other environmental
impacts. Myanmar’s own domestic law does not really address the issue. In fact,
“transboundary impacts” are only referred to once in Myanmar’s environmental
legal framework in Article 28 of the EIA Procedure as one of many factors that the
ECD may consider in making a screening determination as to the level of review
that a proposed project must undergo.

However, customary international law places a clear duty on Myanmar (and all
countries) to prevent and reduce transboundary environmental pollution and to
cooperate with neighboring countries through notification and consultation when
activities occurring within its own jurisdiction may cause transboundary impacts.
The origins of these duties are usually traced back to the Trail Smelter Aribtration,
which involved a dispute between the United States and Canada concerning the
operation of a smelter that processed lead and zinc ore and was located in British
Columbia close to the US border.143 The arbitration body in that case concluded
in 1941 that “no state has the right to use or permit the use of its territory in such
a manner as to cause injury by fumes in or to the territory of another or the
properties or persons therein…”144 Since that time, this principle has evolved into
a clear set of international obligations through state practice, multilateral
environmental agreements, and international judicial decisions, and are perhaps
most clearly expressed in the 1992 Rio Declaration on Environmental and
Development. Under Principle 2 of the Rio Declaration, states have a “responsibility
to ensure that activities within their jurisdiction or control do not cause damage to
the environment of other States or of areas beyond the limits of national

143
35 AJIL (1941) 684.
144
35 AJIL (1941) 716.

82
jurisdiction”. Principle 18 requires states such as Myanmar to notify other states
of any disasters or emergencies that could produce environmental impacts on
those states. And finally, Principle 19 requires states to “provide prior and timely
notification and relevant information to potentially affected States on activities
that may have a significant adverse transboundary environmental effect and shall
consult with those States at an early stage and in good faith”.

Conclusion

As can be seen, Myanmar has established a fairly robust and straight-forward

system for the prevention and control of air and water pollution. As economic
growth and development continue to increase rapidly in Myanmar, the effective
implementation of this system will become integral to ensuring that this
development occurs in a sustainable manner and in accordance with Myanmar’s
National Sustainable Development Plan (2018-2030) and the National
Environmental Policy.

83
84
Participatory Mechanisms in Myanmar
for Environmental Impact Assessment

Matthew Baird, BA, LLB

Director, Asian Research Institute for Environmental Law
Visiting Scholar, Vermont Law School Research Fellow,
Myanmar Centre for Responsible Business

Summary

This chapter will look at the key provisions in the laws that provide for opportunities
for participation by civil society in environmental and natural resources decisions.
The most significant opportunities exist in the context of the Environmental
Impact Assessment (EIA) Process for projects. This provides for consultation with
communities that may be impacted by the project.

Introduction

Myanmar has a number of laws and procedures that provide for public participation
in environmental matters. This Chapter looks at some of the major legal provisions
and also how members of the public and civil society can participate in decisions
that will impact on natural resources management and environmental issues in
general. It must be remembered that community participation is still a new
concept for Myanmar government.
85
Myanmar now has a comprehensive and good practice system of environmental
and social safeguards. Since the adoption of the Environmental Impact
Assessment Procedures 2015, there has been a process by which major projects
are subject to environmental and social impact assessment. However the process
is still new and suffering from many capacity weaknesses. These weaknesses
are both in the capacity of the responsible government entities in Myanmar to be
able to effectively discharge their obligations under the EIA Procedures as well as
in the ability of the private sector EIA consultants to managed complex and
difficult projects.

Since 2012, with the adoption of the Environmental Conservation Law 2012, the
Myanmar government has developed a comprehensive system of laws and
regulations for major projects, including the Investment Law 2016 and the Special
Economic Zone Law 2014. As these are relatively new laws there are still
challenges with implementation and enforcement.

Although there are many opportunities for the community and civil society to
active participate in the EIA system in Myanmar, it is still a new system and only
slowly being implemented. This means that there is limited capacity for project-
affected people (PAP) to exercise their rights under the EIA Procedure. In order
for there to be effective public participation there needs to be support and capacity
development for PAP and civil society to be meaningfully engaged in the public
participation process.

General Constitutional Provisions

The Constitution of the Republic of the Union on Myanmar (“the Constitution”)

was adopted by referendum in 2008. The Constitution provides for a number of
provisions that are relevant to protection of the environment safeguard systems.
Every citizen has the duty to assist the Union in environmental conservation and
the protection of cultural heritage. This can be used to promote the right of the
people to participate in environmental matters.

86
 Constitution of Myanmar 2008

37. The Union:

(a) is the ultimate owner of all lands and all natural resources
above and below the ground, above and beneath the water
and in the atmosphere in the Union;
(b) shall enact necessary law to supervise extraction and utilization
of State owned natural resources by economic forces;
(c) shall permit citizens right of private property, right of inheritance,
right of private initiative and patent in accord with the law.

45. The Union shall protect and conserve natural environment

390. Every citizen has the duty to assist the Union in carrying out the
following matters:
(a) preservation and safeguarding of cultural heritage;
(b) environmental conservation;
(c) striving for development of human resources;
(d) protection and preservation of public property

Environmental Laws

Environmental Protection Law 2012

The Ministry of Natural Resources and Environment Conservation (MONREC),

formerly known as MOECAF, is the Ministry with the authority and responsibility
for the implementation of Environmental Impact Assessment (EIA). Under the
Environmental Conservation Law 2012 (ECL 2012) and the Environmental
Conservation Rules 2014 (EC Rules 2014), the Ministry developed the
Environmental Impact Assessment Procedure 2015 (EIA Procedure).

MONREC has also developed Draft Guidelines on Public Participation in EIA.

These Draft Guidelines have not yet been adopted by MONREC.

87
The Environmental Conservation Law 2012 provides the overview on
environmental protection in Myanmar. The objectives of the Environmental
Conservation Law 2012 include:

Section 3.

The objectives of this Law are as follows:

(a) To implement the Myanmar National Environment Policy;
(c) To promote a good and clean environment… for the benefit of
both present and future generations;
.............
(e) To manage prevention of degradation of natural resources and
to enable the sustainable use;
.............

Investment Law 2016 and Investment Rules 2017

The Foreign Investment Law 2012 and its subordinate Foreign Investment Rules
2014 (FI Rules 2014) implemented the government’s approach to foreign
investment, which includes promoting sustainable economic development by
encouraging foreign investments in Myanmar. Investors must carry out their
activities in a way not to cause environmental pollution or damage in accordance
with existing laws. Article 34 of the FI Rules 2014 provides that investment
proposals for capital-intensive investment projects designated by the Myanmar
Investment Commission (MIC), which need an assessment of their environmental
and social impact, must have EIA or Social Impact Assessment (SIA) report
attached. This is then referred to MONREC for initial assessment and review.
This has been replaced by the Investment Law 2016145 and the Investment Rules
2017.146

145
The Pyidaungsu Hluttaw Law No. 40/2016, The 2nd, Waning of Thadingyut, 1378 M.E.
(18th October, 2016)
146
Ministry of Planning and Finance Notification No. 35 / 2017 The 3rd Waxing of Tagu, 1378 M.E.
(30th March, 2017)
88
There are a number of notifications issued by the MIC. Notification No. 15 /2017
is a list of activities that are restricted and investment activities that are not
allowed to be carried out by foreigners or foreign companies.147

The Investment Law is administered by the MIC and grants permits for businesses
to operate under the investment law regime. Under s.36 investment activities
likely to have a significant impact on the environment or society are required to
conduct environmental impact assessment. This would seem to indicate that
investment activities should include consultation and participation in accordance
with the EIA Procedures 2015.

3. The objectives of this Law are as follow:

(a) to develop responsible investments which do not cause harm
to the natural environment and the social environment for the
interest of the Union and its citizens;
(b) to protect the investors and their investments in accordance
with the law;
(c) to create job opportunities for the people;
(d) to develop human resources;
(e) to develop highly efficient productivity, service, and trading
sectors;
(f) to develop technology, agriculture, livestock and industrial
sectors;
(g) to develop various professional fields including infrastructure
around the Union;
(h) to enable the citizens to be able to work alongside with the
international community; and
(i) to develop businesses and investments that meet international
standardsg

147
This is attached as Annexure 1.
89
Chapter XVI also provides for the responsibilities of the investor. In particular s.65
(g) requires that the Investor “shall abide by the applicable laws, rules, procedures
and best standards practiced internationally for this investment so as not to cause
damage, pollution, and loss to the natural and social environment and not to
cause damage to cultural heritage”.

There is also a provision that imposes a liability for effective compensation for
loss incurred to the victim, if “there is damage to the natural environment and
socioeconomic losses caused by logging or extraction of natural resources which
are not related to the scope of the permissible investment, except from carrying
out the activities required to conduct investment in a Permit or an Endorsement”.148

The Investment Law 2017 also clarifies that the grant of an investment permit
does not exempt an investor from the requirement to comply with the EIA
Procedure 2015.

71. In conducting their investment activities, the investor shall carry out
health assessments, cultural heritage impact assessments, environmental
impact assessments and social impact assessments according to the
type of investment activities in accordance with the relevant laws, rules,
regulations and procedures.

The Investment Rules 2017 provides for the application and interpretation of the
Investment Law 2016. The Investment Rules identifies those investments that will
have a large potential impact on the environment or the community. This may
also include projects that are likely to cause resettlement for over 100 people.
There are no specific requirements for consultation under the Investment Rules.

148
Investment Law, s.65(o).
90
5. For the purpose of section 36(c) of the Law, an Investment is taken to
have a large potential impact on the environment and the local community
if:
(a) it has been or is likely to be classified as an EIA Type Project;
(b) the Investment is located under a designated protected or
reserved area or major biodiversity area under the laws in
force including the Environmental Conservation Law or areas
selected and specified to support the eco system and cultural
and natural heritage, cultural commemoration and unspoilt
natural areas; or
(c) it includes rights to occupy or use land which:
(1) has been or is likely to be acquired through expropriation,
compulsory acquisition procedure or by agreement in
advance of such expropriation or compulsory acquisition
procedure in accordance with the laws of the Union and
will either cause the relocation of at least 100 individuals
permanently residing on such land or comprise an area of
more than 100 acres;
(2) comprises an area of more than 100 acres and would be
likely to cause involuntary restrictions on land use and
access to natural resources to any person having a legal
right to such land use or access;
(3) comprises an area of more than 100 acres and which is
the subject of a pre-existing bona fide claim or dispute by
a person regarding rights to occupy or use such land in a
way which would conflict with the proposed Investment;
or
(4) would otherwise adversely impact the legal right of at
least 100 individuals occupying such land to continue to
occupy such land.

91
SEZ Law 2014 and Rules 2014

Special Economic Zones (SEZs) are governed under the Special Economic Zone
Law 2014 (the SEZ Law), which authorizes the Government to establish SEZs.
Chapter VIII identifies the types of investment that can be carried out in SEZ
areas.149

The SEZ Law does explicitly refer to the Environmental Conservation Law, but
only to uphold that law’s provisions:

35. The investor shall not only abide by the environmental standards
described in the Myanmar Environmental Conservation Law and
international standards, but also carry out them in accordance with the
existing laws in order not to have undesirable health and social impact.

This requirement would appear to explicitly require the SEZ and the SEZ
Management Committee to comply with the Environmental Conservation Law
2012.

The SEZ Law restates the provision of the SEZ Law 2011 that requires adherence
to all other regulatory requirements:

85. The developer or investor, his employees, technicians, staff and their
family members residing in the Special Economic Zone shall also abide
by other existing laws of the Union of Myanmar in addition to the provisions
of this Law.

This means that any project in SEZ would also need to follow the public
participation provisions under the EIA Procedure 2015.

149
SEZ Law Article 29.
92
International Principles that may apply in Myanmar

United Nations Declaration on the Rights of Indigenous Peoples

Myanmar was one of 144 states that endorsed the United Nations Declaration on
the Rights of Indigenous Peoples in September 2007. Effective implementation of
this human rights instrument would significantly improve the situation for
indigenous people in Myanmar and throughout the world. Article 32 is about
Indigenous Peoples right to Free and Prior Informed Consent (FPIC):

“States shall consult and cooperate in good faith with the Indigenous Peoples
concerned through their own representative institutions in order to obtain Free
and Prior Informed Consent prior to approval of any project affecting their land or
territories”.

Article 10 about forcible relocation of indigenous people, and the need for FPIC
and Article 26 about land rights are also relevant articles for indigenous peoples
in Myanmar.

This has not yet been incorporated into Myanmar law. The EIA Procedure 2015
(referred to below) includes provisions for the application of procedures issued by
relevant Ministries. However as of 2017, no procedures for involuntary
resettlement have been adopted.

7. Projects that involve Involuntary Resettlement or which may potentially

have an Adverse Impact on Indigenous People shall comply with specific
procedures separately issued by the responsible ministries. Prior to the
issuance of such specific procedures, all such Projects shall adhere to
international good practice (as accepted by international financial
institutions including the World Bank Group and Asian Development
Bank) on Involuntary Resettlement and Indigenous Peoples.

93
Usually this would also require these proposals to follow international standards
when it comes to consultation with affect people and communities. At present
there are no Myanmar procedures.

Legal Arrangements for Participation under Myanmar Law

Environmental Impact Assessment

The primary mechanism for the approval of infrastructure programs is the EIA
system in Myanmar. Section 15 of the EIA Procedure 2015 establishes that
MONREC is the exclusive authority for the review and assessment of any Initial
Environment Evaluation (IEE), Environmental Impact Assessment (EIA) and
Environmental Management Plan (EMP) in Myanmar.

The EIA Procedure 2015 establishes the procedures for EIA and IEE in Myanmar
(see Figure 1). The EIA Procedure 2015 provides a standard process for EIA.

• Screening
• Selection and check of the EIA expert
• Scoping
• EIA Investigation
• EIA Report
• EIA Review process
• ECC Issued or Project rejected

The EIA Procedure 2015 further provides that EIA consultants must be registered
with MONREC. No EIA or IEE may be conducted unless the consultant or firm is
registered. MONREC has established a temporary system for registration of EIA
Experts.

The Environmental Conservation Rules 2014 provide further definitions for EIA
and IEE:

94
 Environmental Impact Assessment means the process of systematic
study whether or not there are potentials or impact processes that may
cause on the physical, human, biological and socioeconomic environment
which is required as part of the decision-making process on the proposed
project, business, service or activity;

Initial Environmental Examination means the initial process which

studies whether or not potential impacts of a project or business or activity
is significant, whether or not it is necessary to carry out environmental
impact assessment and whether or not it is necessary to prepare and
submit other stipulated documents;

The EIA Procedure 2015 also define key terms that are used in the EIA and IEE
process, this includes a definition of Project Affected Persons who need to be
consulted during the EIA process:

Project Affected Person or PAP means a natural person, legal entity, or

organization that is, or is likely to be, directly or indirectly affected by a
Project or a proposed Project, including without limitation effects in the
nature of legal expropriation of land or real property, changes of land
category, and impacts on the ecological and environmental systems in the
settlement areas of such person, entity or organization.

Procedure for EIA

The EIA Procedure 2015 includes a screening Annex to provide guidance for the
types of listing those projects required to carry out either an EIA or IEE.

95
 SCREENING

INITIAL ENVIRONMENTAL ENVIRONMENTAL NO ASSESSMENT

EXAMINATION IMPACT ASSESSMENT REQUIRED

Investigations & Scoping

Reporting

Investigations &
Reporting
Review & Approval
Process
Review & Approval
Process
Environmental Compliance
Certificate (ECC)
Reject ECC
OTHER
PERMITTING
PROCESSES
Figure 1: Developed by Cosier and Baird (2015)

Screening

Screening is the first step in the EIA or IEE process. The Project Proponent will
submit an application to MONREC to determine the level of assessment that is
required using the Annex I list of projects (Article 23). There is no requirement for
consultation at the screening stage.

Scoping

Only EIA projects must undergo scoping.150 Following the screening determination
that an EIA is required, the Project Proponent and its EIA Consultant must develop
a draft Terms of Reference for the EIA for the Proposed Project.

150
EIA Procedure Article 47.
96
Scoping requires both an initial study of the proposed project and the possible
environmental and social constraints as well as beginning the process of public
consultation with PAP and other stakeholders.

Scoping is designed to:

(a) define the study area, area of influence, time boundaries, Project
phases, and potential stakeholders;
(b) start the process of understanding the applicable regulations and
standards, and their context for Project design and completion of the
EIA;
(c) make a provisional identification of Environmental Impacts, focusing
in particular on the environmental, social and health issues that need
to be addressed in subsequent EIA studies;
(d) provide an indication of the depth and breadth of the subsequent EIA
investigations including what baseline data and information are
required, what further studies and investigations must be carried out,
and how such data collection, studies and investigations shall be
undertaken;
(e) provide an opportunity for consultants, relevant authorities, project
developers, and interested and affected parties to express their views
and concerns regarding the proposal before an EIA proceeds;
(f) enable an efficient and comprehensive assessment process that
saves time, resources, and costs and avoids delays; and
(g) identify potentially affected communities and other stakeholders with
an interest in the Project. (Article 49).

In Myanmar, public participation is mandatory at the scoping stage to both release

relevant information and consult interested stakeholders.

50. As part of the Scoping, the Project Proponent shall ensure that the
following public consultation and participation process is carried out:

97
 (a) disclose information about the proposed Project to the public and
civil society through posting on the Project or Project Proponent’s
website(s) and local media, including by means of the prominent
posting of legible sign boards and advertising boards at the Project
site which are visible to the public; and
(b) arrange the required complement of consultation meetings as
advised by the Ministry, with local communities, potential PAPs, local
authorities, community based organizations, and civil society, and
provide appropriate and timely explanations in press conferences
and media interviews.

The Scoping Report must be prepared in accordance with any guidelines issued
by the Ministry and shall include draft ToR for the EIA Report in accordance with
Article 51.

EIA Report Preparation

Once the Scoping Report and ToR have been approved by MONREC, the Project
Proponent is then able to commence the EIA investigation and the preparation of
the EIA and the EMP. This must include an assessment of alternatives151 and
must be in accordance with the approved ToR.152 The EIA is to be comprehensive
as indicated in Articles 56 and 57. It must also address the relevant national and
international standards. Myanmar adopted National Environmental Quality
Standards in 2015. These must be addressed in accordance with the EIA
Procedure 2015.

Public Participation and consultation with PAP and Stakeholders forms an integral
part of the EIA process in Myanmar.

151
EIA Procedure Article 48
152
EIA Procedure Article 55
98
 61. As part of the EIA investigations, the Project Proponent shall undertake
the following consultation process:
(a) timely disclosure of all relevant information about the proposed
Project and its likely Adverse Impacts to the public and civil
society through local and national media, the website(s) of the
Project or Project Proponent, at public places such as libraries
and community halls, and on sign boards at the Project site
visible to the public, and provide appropriate and timely
explanations in press conferences and media interviews;
(b) arrange consultation meetings at national, regional, state, Nay
Pyi Taw Union Territory and local levels, with PAPs, authorities,
community based organizations and civil society;
(c) consultations with concerned government organizations
including the Ministry, the concerned sector ministry, regional
government authorities and others; and
(d) field visits for the Ministry and concerned government
organizations.

The EIA Procedure 2015 provides a detailed table of contents for an EIA report,
which further outlines the topics and issues to be addressed in the EIA.153

Once the EIA report is prepared and submitted, there is a need for disclosure of
the EIA Report and the EMP. The EIA Report must also comply with the table of
contents in Article 63. MONREC may arrange public consultation meetings and
the EIA Review Report Body will examine the EIA Report, and EMP and either
recommend the Project be approved, amended or rejected. The Minister makes
the final decision. If approved, MONREC will then issue an ECC for the Project.

The Project Proponent is liable for monitoring and compliance with the EIA, EMP
and ECC. There is no requirement for the Project Proponent to establish any
community consultative committee or grievance mechanism for PAP.

153
EIA Procedure Article 63
99
Public Participation

Under the EIA Procedure 2015, the Project Proponent shall conduct public
consultation processes at both the scoping (for EIA) and investigation steps (both
EIA and IEE). The ECD of MONREC has developed a draft Guideline on Public
Participation that provides greater details of the process to be followed for public
consultation. However at that time, the Draft Guideline is still under consideration
and has not been adopted for use by EIA consultants.

13. The Project Proponent shall:

(a) arrange for appropriate public consultation through all phases
of the IEE and EIA process as required by Articles 34, 50, and
61, and
(b) disclose to the public in a timely manner all relevant Project-
related information in accordance with this Procedure except
that which may relate to National Security concerns as informed
by the Ministry.

Consultation and information disclosure about the project is required at the

Scoping Stage. During Scoping, the Proponent must ensure that the public
participation includes the following:154

(a) disclose information about the proposed Project to the public and civil
society through posting on the Project or Project Proponent’s
website(s) and local media, including by means of the prominent
posting of legible sign boards and advertising boards at the Project
site which are visible to the public; and
(b) arrange the required complement of consultation meetings as advised
by the Ministry, with local communities, potential PAPs, local
authorities, community based organizations, and civil society, and
provide appropriate and timely explanations in press conferences and
media interviews.

154
EIA Procedure Article 50
100
During the EIA preparation phase, which occurs after the TOR have been finalized
with MONREC, the Project Proponent or EIA Consultant must undertake
information disclosure and public participation. Under the EIA Procedure 2015,
the EIA shall “consider the views, concerns, and perceptions of stakeholders,
communities and individuals that could be affected by the Project or who
otherwise have an interest in the Project”.155

Article 61 requires that as part of the EIA investigation the Project Proponent shall
undertake the following consultation process:

(a) timely disclosure of all relevant information about the proposed Project
and its likely Adverse Impacts to the public and civil society through
local and national media, the website of the Project Proponent, at
public places such as libraries and community halls and sign boards
at the Project site visible to the public;
(b) arrange consultation meetings at national, state and local level with
PAPs, authorities, community based organizations, and civil society;
(c) consultations with concerned government organizations including
MOECAF, the concerned sector ministry, regional government
authorities, and others; and
(d) field visits for the MOECAF and concerned government organizations.156

EIA Procedure Article 60

155

None of the details are clarified in the draft EIA Procedure 2015.
156

This will need to be subject to further guidelines.

101
 Project Proponent PAP & Other
Stakeholders
Prepare Notice of EIA Issue Notice of Commencement
Investigation Disclose Information Review Approved
Commencement Scoping Report, Tor &
Notice of First Meeting Public Participation
Plan
First Meeting
Invite Public
Submissions
Feedback / Submission

Review Project-
related Information
Site Visits
Record & Consider
feedback
Submission / Feedback
Review Draft EIA
Notice of Second Meeting
Investigation Findings
Consider Public
Submissions
Second Meeting Review Draft EIA
Report
Incorporate into Feedback / Submission
EIA Investigation Provide Ideas &
Notice of Subsequent Suggestions
meetings/s (If Required)
Incorporate into
EIA Report Subsequent Meetings
(If Required) Provide Feedback

Feedback / Submission

Final Presentation of
EIA Report
Submit Final EIA Disclose Submitted EIA Report Review Final
Report to ECD EIA Report

Figure 1: Public participation during EIA Report Preparation157

Public concerns should also be taken into account in assessing impacts,

designing mitigation measures, and selecting monitoring parameters. The EIA
Report must include a section on the public consultation process, including the
results of public consultations and negotiations with the affected populations on
the environmental and social issues.

157
Taken from Draft Guidelines on Public Participation in EIA
102
Assessment and Review of EIA

The EIA Procedure 2015 also establishes an EIA Report Review Body. The Body
is responsible for the review and assessment of EIA and making recommendations
as to whether to recommend that the EIA should be approved. The EIA Report
Review Committee undertakes the review of the EIA Report and may also
recommend conditions to be attached to the Environmental Compliance
Certificate (ECC) that is issued by the Ministry.

All IEE and EMPs are reviewed by the ECD. The ECD prepares the ECC for
approval by the Ministry.

According to the EIA Procedure, and further explained in the Draft Guidelines on
Public Participation, ECD is required to provide some degree on public
participation during the review and assessment phase of the EIA report. In
accordance with article 67 of the EIA Procedure, ECD is responsible for
coordinating the review of submitted EIAs, including the public participation
processes intended to inform the decision on the EIA. The Proponent is required
to pay for this further public participation.158

158
EIA Procedure Article 69.
103
 ECD Project PAP & Other
Proponent Stakeholders
Publicly Release Publicly Release
Submitted Submitted
EIA Report EIA Report
Instruct Issue Notice of
Invite Public Review
Proponent on Public Meeting EIA Report
Submissions Organise Public
Consultation Meeting/s at
Requirements Local Level
Record & Consider
Feedback From Public Meeting/s at Local Level
Public Meetings
Organise Public
Meeting/s at Issue Notice of
Consider Public State/Region
Public Meeting
Submissions and/of
Union Levels

Incorporate into Public Meeting/s at State/Region and/or Union Levels Prepare

Review of Submissions
EIA Report

Submissions on IEE Report to ECD

Submit Final
Recommendation
to MONREC MONREC's Final Decision Publicly Released

Figure 2: Public participation during EIA Report review159

Approval and Issuing of Environmental Compliance Certificate

Following the review of the EIA by the EIA Report Review Body, the Ministry is to
consider a report by the ECD and determine whether to approve or reject the
EIA.16 The process is similar in the case of EMPs and IEE Reports except that
there is no requirement for the EIA Report Review Body to consider the EMP or
IEE. This is carried out by ECD in accordance with Articles 39 and 40.

159
Taken from Draft Guidelines on Public Participation in EIA
104
The Ministry will issue an Environmental Compliance Certificate together with
attached conditions. The Ministry may prescribe conditions to be attached to the
ECC. Such conditions should include a Grievance Mechanism and a community
consultative committee for long term developments. Both of these approaches
will help promote participation in the monitoring of the project.

Monitoring and Enforcement

Under Article 87, the proponent is required to commence the implementation of

the project strictly in accordance with the conditions attached to the ECC,
including the EMP. The EIA Procedure places a heavy reliance on self-reporting.
Articles 106-108 provide that the proponent is to conduct self monitoring during
all stages of the project in accordance with applicable laws, the EIA Rules, the
EIA Procedures 2015, standards, the ECC and the EMP, and that the proponent
is to notify MONREC of any breaches of its obligations. Within 10 days of a
monitoring report being completed, it is required to be made publically available
on the Project’s website, at public meeting places and Project offices, and any
person is able to request a digital copy of the report.160 The reporting requirements
are enforceable conditions of the ECC and the EMP.

These requirements, together with any community consultation committee and

grievance mechanism established by the project proponent will also provide
opportunities for continuous community involvement.

160
EIA Procedure Article 110
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Review of Public Participation in EIA

Stage IEE/EIA Opportunity for participation

Screening None
Scoping Consultations with local Project Affected Persons
Report Preparation Consultations, Access to EIA Information,
Submissions to EIA consultants
ECD Review and Submissions to ECD, Public Meetings
Assessment
ECC Approval None but these is an appeal process
under the EIA Procedure.
Monitoring and The ECC should provide for a Grievance
Compliance Mechanism for complaints at local level.
PAP can always complain to ECD.

Limits on Public Participation

The opportunities for public participation are new in Myanmar and may conflict
with the interests of government or business. This can create conflict and protest.
While it can be argued that under s.390 of the Constitution of Myanmar, every
citizen has a duty to protect the environment and natural resources, this duty may
be limited by laws on defamation, unlawful assembly, internet distribution of
material and trespass. So, it is important for all citizens and community groups
and civil society organizations to be aware of the limitations to public participation
to avoid any potential civil or criminal charges.

Some key limitations to be aware of:

• Defamation
• Unlawful Gatherings
• Trespass

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Defamation

Defamation is covered under section 499 of the Penal Code 1861. It covers
words, either spoken or intended to be read in papers, submissions, petition,
letters of objection submitted to the Government and post on the internet or
Facebook. You can defame people and politicians as well as companies and
associations. It would include banners and signs held up at rallies and meetings.
For a good discussion on defamation see the Rule of Law Handbook for
Journalists in Myanmar 2017, Copyright by Konrad-Adenauer Stiftung Ltd.,
Myanmar and United Nations Development Programme (p.81).

Unlawful Gatherings

Often public participation includes organizing a meeting, a conference or a rally.

In many cases this will need the approval of the local township Chief of Township
Police or the approval from the General Administration Department. The Peaceful
Demonstration and Gathering Act 2012 requires prior permission for a peaceful
procession, which may also specify the date, time and route of the event. Failure
to comply with the terms of the permission is an offence.

Trespass

There are strict rules against trespassing on private land and government land
without permission or approval from the relevant authorities. Section 441 of the
Penal Code defines criminal trespass which includes entering on property to
“commit an offence or to intimidate, insult or annoy any person in possession of
such property.” It is also an offence if you have lawfully entered the property but
then “unlawfully remain” on the property “to intimidate, insult or annoy any
person.” So if asked to leave it is always better to comply rather than potential
commit a criminal trespass.

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108