Lack of accountability and clarity in SEZ Law highlighted in Dawei
Myanmar Times 13 July 2017 | Su Phyo Win
An inadequate legal framework, poor implementation process, absence of accountabilities and the lack of transparency lead to violations of human rights and environmental disruption in Myanmar’s Special Economic Zones, speakers at the Myanmar Special Economic Zones Forum highlighted.
The event was held in Dawei township, Tanintharyi Region on July 11.
Special Economic Zones (SEZ) have been considered an important part of a developing country’s policy apparatus since the 1980s. Myanmar currently has three SEZ projects, either in operation or in the pipeline: Thilawa SEZ, Kyaukphyu SEZ and Dawei SEZ.
Similar to many pieces of legislation in the country, the legal provisions do not provide sufficient clarity, particularly with the responsibilities, oversight and obligations which different governing institutions and organisations are subject to.
With the Myanmar SEZ Law, there are two key weaknesses.
One is related to the role of the SEZ management committees governing each zone. The management committee plays an important and powerful role in the implementation of the zone. The issue is that their roles and responsibilities are not clearly defined, according to Sean Bain, legal consultant from the International Commission of Jurists (ICJ).
When things go wrong, there is a lack of accountability because community members do not have a clear place to go to convey their complaints or to try to access some kind of remedy, he added.
“The other key issue with the SEZ law is regarding the sequencing of critical legal procedures which affect human rights and the environment,” he said. There is not clear responsibility for coordinating the application of legal procedures in the correct sequence.
In order to develop an SEZ, the first step is to have an Environmental Impact Assessment (EIA).
When that EIA is finalised, it informs the planning process for the next step, which is to plan for any resettlement which might take place. And after that plan is done, implementation of the project can start by land acquisition and construction.
Mr Bain said that for the SEZ law, the simple legal process is not clear. He observed that, often, the legal procedures are being carried out in the wrong way. Thus, plans are implemented pre-maturely before they are finalised.
“So, the land acquisition is done before the EIA and resettlement planning, and that has the effect of undermining the protection of human rights and protection of the environment which are in the current laws.
“This is because the laws do not have the opportunities to go through the process correctly before the land acquisition does,” he said.
Sean Bain insisted that in SEZs, it is the responsibilities of the SEZ management committees to ensure that the laws are followed and that the companies and government departments are in compliance with the laws.
“It is also the responsibilities of the SEZ management committees to ensure that the different departments who are doing the activities are doing it in the right sequence and that at they are conducting their activities in the right order, and that the planning processes are completed before implementation processes,” he said.
The legal consultant went on to say that the government at the union level has the role to ensure that the management committees have the directions and clear instructions regarding the implementation and coordination of the laws in the SEZs in a way which aligns with not only national laws but also the state’s obligations under international human rights laws.
“Ultimately, at the ground level, it is the management committee who is coordinating these processes and they need to have clear directions and mandates from the union level, so that when they are giving instructions and doing coordination, they can do so effectively,” he said.
But the challenges in this aspect are that some governmental departments are not under the jurisdiction or control of the union government, he explained.
“They are controlled from different places. For example, the general administration department is responsible for the land acquisition process. But, under Myanmar law or under the Myanmar constitution, they are not directly reporting to the elected union government.
“So, there are some challenges and complications there, which are also the highlight of the legal reform,” he said.
U Soe Shwe, one of the representatives of Myanmar SEZ Watch’s working committee, said the laws have included some positive progress on the protection of human rights and the environment. However, officials responsible fail to enforce those criteria.
“It means the government and responsible committees are weak at implementing the laws,” he noted.
Two dams have already been under construction before their respective EIAs were completed in Kyaukphyu SEZ, according to the representative.
“The construction of two dams in Kyaukphyu SEZ has already started before their respective EIAs have begun, let alone completed. The EIAs still have not started and the community has no idea when they will commence,” U Soe Shwe said.
With a lack of transparency regarding the compensation and resettlement processes, some of the processes are ignored and hence the mechanism does not fully protect the community or the public, U Soe Shwe continued.
U Mya Hlaing, a representative of Thilawa Social Development Group, added that the lack of responsibility and accountability makes the community suffer further difficulties in the areas where the SEZs are implemented.
“SEZs may cause an economic growth for the country.
“However, if the community is under a severe plight because of the project, it is not permissible,” he said.
U Kae Don, another representative of Myanmar SEZ Watch’s working committee, said that the implementation of Dawei SEZ needs to follow the legal procedures. Any progress or development on the project has to be published and made public.
“The community needs to know what the government is planning to do in the area they are living in.
“If EIA reports are drafted, there is a need to make the reporters public for the community.
“Only if the community accepts the report, should the project move ahead,” he said.
