National Law Regarding the Illegal Wildlife Trade and the
Challenges to Implement the Law
1. Biophysical and geographical descriptions about Myanmar
Myanmar is a country situated in continental Southeast Asia, between 10°
and 29° N latitude and 92° and 101° E longitude. Myanmar, with an area
of 676,577 km2, extends 936 km from the east to west and 2,051 km from
north to south. Boundaries share with China in the north, with Laos and
Thailand in the east, and with Bangladesh and India in the west. The
Andaman Sea and the Bay of Bengal edge the Myanmar coast in the
south and the west. Topographically, Myanmar can be roughly divided
into three parts: the western hills region, the central valley region, and the
eastern hills region. The general profile of the country rises from the sea
level along the southern coasts to the snow-capped mountains towering
with a highest elevation of around 6,000 m in the northern tip of the
country near the China border.
The country can generally be described as hilly and mountainous because
most parts of the country are situated on high lands. Myanmar is drained
by many river systems and most are flowing from the north to the south.
The main rivers are Ayeyarwaddy, Thanlwin, Chindwin and Sittaung.
Myanmar typically features a tropical monsoon climate. The climate in
some parts of the country, however, is locally modified by topography. In
most parts of Myanmar, there are three well defined seasons: the rainy
season (mid-May to October), the cold season (November to January) and
the hot season (February to mid-May). Nonetheless, the rainfall patterns
and temperature distributions are quite diverse throughout the country.
The coastal regions receive more than 5000 mm of annual rainfall
whereas the central part of Myanmar has an annual rainfall of less than
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1000 mm. In addition, the average highest temperature in the central
region during the hot season of March and April rises to above 43.3°C
while in the northern mountainous parts of the country, it is about 36°C
and on the eastern Shan plateau, it is between 29.4°C and 35°C.
As a result of the great variations in rainfall, temperature and topography,
there are many forest types in Myanmar. Varied forest types of Myanmar
are home of several mammals, reptiles, avifauna, amphibians, fish and
plant species (Annex 1). Myanmar, therefore, represents an important
biodiversity reservoir in Asia. Furthermore, Myanmar possesses
numerous endemic wild flora and fauna (Annex 2).
2. Wildlife management in Myanmar
Conservation on natural resources has been practiced many years ago in
Myanmar. Between 1981 and 1984, a project namely Nature
Conservation National Park Project (NCNPP) was launched under the
joint implementation of United Nations Development Program (UNDP)
and Myanmar government. During the NCNPP, the Ministry of
Environmental Conservation and Forestry established the Nature and
Wildlife Conservation Division (NWCD), and NWCD is responsible for
nature conservation and Protected Areas(PAs). Among the 36 PAs, six
PAs have been recognized as ASEAN Heritage Parks (AHP).The six
AHPs are Khakaborazi National Park, Indawgyi Lake Wildlife sanctuary,
Alaungdaw Kathapa National Park, Inlay Lake Wildlife Sanctuary,
Meinmahla Kyun Wildlife Sanctuary and Lampi Marine National Park.
Some detail information of the three Wildlife Sanctuary of Myanmar are
described as below –
2.1 Indawgyi Lake Wildlife sanctuary
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Indawgyi Lake Wildlife Sanctuary was established in 2004. It is situated
in Moenyin Township, Moenyin District, Kachin State. The Sanctuary
covers an area of about 815 km2. It is the largest inland lake in South East
Asia and the third largest one in the world. The Sanctuary is dominated
by moist upper mixed deciduous and semi-evergreen forests, and 37
mammals, 326 forest bird species, 80 amphibian species, 50 butterfly
species and 64 fish species have been recorded. Bird watching is very
popular due to the extensive number of bird species around the Lake.
Visitors may also participate or view traditional fishing practices, or pass
through the historically famous Shwe Myint Zu Pagoda that is situated on
the western side of the Lake.
2.2 Inlay Lake Wildlife Sanctuary
Inlay Lake Wildlife Sanctuary was established in 1985, and covers an
area of about 641 km2. It is situated in Nyaung Shwe, Pinlaung and Peh
Kon Townships of Southern Shan State. It is the second largest Lake in
Myanmar after the Indawgyi Lake. The Sanctuary’s vegetation comprises
wetland sedge, reeds and evergreen flora. This unique wetland system is
home to about 250 bird species. The Lake also provides habitats for 20
species of snails, and 43 species of fish, with 16 endemic fish. About 14
migratory bird species have been recorded. A total of 527 medicinal plant
species and 108 orchids were recorded in the sanctuary. The people living
in the lake area are called Intha, and most of them are Buddhists. Lake
dwellers also practise traditional floating agriculture that deserves to be
preserved. Travel is mainly by boat, and locals shop at ‘floating bazaars’,
which form the only floating market in Myanmar. The residents also fame
for their unique rowing style; they use one leg wrapped around a pole to
push their boats through the waters of the Lake. The Lake is also an
important watershed and water resource for electricity and local use.
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2.3 Meinmahla Kyun Wildlife Sanctuary
Meinmahla Kyun was declared as a Wildlife Sanctuary in 1993, and
covers an area of 137 km2. It is situated in Bogalay Township, Phya Pone
District, Ayeyarwaddy Region. It was established to protect the
remaining mangrove forests as a refuge for species such as estuarine
crocodiles, resident & migratory water and shore birds. The forest type is
mangrove forest, and it serves as a breeding ground particularly for fish
and prawn. A total of 40 mangrove species, 53 medicinal plants species,
11 orchid species, 15 mammals species, 51 fish species, 12 prawn
species, 9 crab species, 26 snake species, 1 crocodile species, 35 butterfly
species and 117 bird species are observed in the Sanctuary. Two turtle
freshwater species and freshwater dolphins have been reported in the area
as well.
3. Strategies and plans towards wildlife protection in Myanmar
The National Commission for Environmental Affairs (NCEA) was
formed in 1990 to coordinate environmental matters across ministries, to
develop National Environmental Policy and to liaise with foreign
countries and non-government organizations regarding environmental
matters.
3.1. Legal Framework
Protection of Wildlife, Wild Plants and Conservation of Natural Area
Law (1994) mandates protection of wild flora and fauna and their habitats
and representative ecosystems. The objectives of this law are as follows;
(a) to implement the Government policy for wildlife protection;
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(b) to implement the Government policy for natural areas conservation;
(c) to carry out in accordance with the International Conventions acceded
by the State in respect of the protection and conservation of wildlife,
ecosystems and migratory birds;
(d) to protect endangered species of wildlife and their natural habitats;
(e) to contribute for the development of research on natural science;
(f) to protect wildlife by the establishment of zoological gardens and
botanical gardens.
Under the Section 15 of the Protection of Wildlife, Wild Plants and
Conservation of Natural Area Law, the Director General shall, with the
approval of the Minister: (a) determine and declare endangered species of wild animal which are to
be protected according to the following categories : (i) completely protected species of wild animals;
(ii) normally protected species of wild animals;
(iii) seasonally protected species of wild animals.
List of Protected Species (1996) affords various degree of protecting wild
plants and animals according to their designation: (1) completely
protected species (Annex III) may not be hunted except for scientific
purposes under special license; (2) protected species may be hunted but
only with special permission (Annex IV); and (3) seasonally protected
species are subjected to traditional subsistence hunting by rural
communities only during the open (i.e., non breeding) season (Annex V).
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In addition, Forest Law (1992) protects forest resources and gives priority
to link forest management to social and environmental considerations.
3.2 Activities of law enforcement for controlling wildlife trade in
Myanmar
Myanmar imposed laws, rules and regulations as legal backbones for
effective conservation. Protection of Wildlife and Protected Areas Law
(1994) mandates protection of wild flora & fauna, their habitats and
representative ecosystems. List of Protected Species (1996) affords
various degree of protecting wild plants and animals according to their
designation: (1) completely protected species may not be hunted except
for scientific purposes under special license; (2) protected species may be
hunted but only with special permission; and (3) seasonally protected
species are subjected to traditional subsistence hunting by rural
communities only during the open (i.e., non breeding) season. Currently
this List Protected Species is being revised to be compatible with the
current status of species. In addition, Forest Law (1992) protects forest
resources and gives priority to link forest management to social and
environmental considerations.
Myanmar’s forest department has been implementing law enforcement
activities against the illegal wildlife hunting, transportation and trade.
During January 2010 and September 2011, Myanmar Forest Department
has detected 50 illegal trades of wildlife and their parts.
To facilitate implementing effective measures for domestic and
transboundary illegal wildlife and wild plant trade, Myanmar has formed
National Wildlife Law Enforcement Task Force in 2007, consisting of
several governmental organizations led by Forest Department. The Task
Force is reporting the seizures of illegal wildlife trade to ASEAN –
Wildlife Enforcement Network (ASEAN-WEN). The Task Force has
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been reformed in 2011. The CITES Management Authority of Myanmar
is working with the Ministry of Commerce, the Customs Department, and
National Police Force in strengthening the regulations of the wildlife
trades.
4. Taking Action under the Protection of Wildlife and
Conservation of Natural Areas Law
4.1
Taking Administrative Action
Forest staff are empowered to take administrative action in respect of
search, seizure and disposal of exhibits carry out in the manner
prescribed. Under the provision of the Section 29, a Forest Officer may
pass an administrative order causing a fine which may extend to kyats
1000 to be paid, on a person who commits frightening or wilfully
disturbing protected wild animals within a natural area or within the
zoological garden or botanical garden which is administered by the
Government or towards which the Government has subscribed share
capital.
A Forest Officer may pass an administrative order causing a fine which
may extend to kyats 10,000 to be paid, on a person who kills, hunts,
wounds or raises a seasonally protected wild animal without permission
during the close season in accordance with the Section 31 of the
Protection of Wildlife and Conservation of Natural Areas Law.
The provision of Section 33 mentioned that a person dissatisfied with an
administrative order passed by a Forest Officer may file an appeal to the
Director General within 30 days from the date of such order. The decision
of the Director General shall be final and conclusive.
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4.2 Taking Criminal Action
There were several penaities for criminal actions whoever commits the
acts such as hunting without a licence, violation of any condition of the
hunting licence, aising without permission, for commercial purpose
normally protected wild animals and seasonally protected wild animals
shall on conviction be punished with imprisonment for a term which may
extend to 3 years or with fine which may extend to kyats 10,000 or with
both under the provision of the Section 35.
Furthermore, Section 37 provides that whoever commits killing, hunting
or wounding a normally protected wild animal or seasonally protected
wild animal without permission, possessing, selling, transporting or
transferring such wild animal or any part thereof without permission
shall, on conviction be punished with imprisonment for a term which may
extend to 5 years or with fine which may extend to kyats 30,000 or with
both.
In addition, whoever commits killing, hunting or wounding a completely
protected
wild
animal
without
permission,
possessing,
selling,
transporting or transferring such wild animal or any part thereof without
permission, exporting without the recommendation of the Director
General a completely protected wild animal or a protected wild plant or
any part thereof shall, on conviction be punished with imprisonment for a
term which may extend to 7 years or with fine which may extend to kyats
50,000 or with both, in accordance with the Section 37.
However, the above mentioned provisions shall not apply to the
possessing as a souvenir or wearing as a traditional custom of any part of
normally protected wild animal or a seasonally protected wild animal; the
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possessing or wearing with a certificate of registration issued under
section 27 sub-section (b) of any pad of a completely protected wild
animal; the possessing, use, sale, transport or transfer of a drug prepared
from a part of a protected wild animal.
Regarding with the loss and damage to the Forest Department the Court
may pass order for the value of the loss and damage to the Forest
Department caused by the offender, to be paid by way of compensation to
the Forest Department, in line with the provision of Section 39. And also
the Court shall confiscate the wild animal, wild plants and parts thereof
involved in the commission of the offence and hand over the same to the
Forest Department. The Court may pass an order for confiscation of
vehicles/ vessels, animals and other machinery and implements involved
in the commission of the offence.
The significant provision under the Protection of Wildlife and
Conservation of Natural Areas Law is burden of proof. The law mentions
that, in a case where administrative action is taken or where a legal
proceeding is instituted under this Law, the burden of proving lawful
ownership or lawful right of possession in respect of the exhibit seized
shall lie on the person against whom action is taken.
4.3 Detected illegal trades of wildlife
During January 2010 and September 2011, Myanmar Forest Department
has detected 50 illegal trades of wildlife and their parts. Most of the cases
are detected in the Myanmar-China border. The wild animals which
seized on the border are mostly includes in categories of the normally
protected wildlife, such as fresh water turtles and land tortoise.
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5. Challenges faced by the judiciary in implementing the law
In instituting legal proceedings under the Protection of Wildlife and
Conservation of Natural Areas Law, prior sanction of the Ministry of
Forestry shall be obtained. A criminal offence committed under
Protection of Wildlife and Conservation of Natural Areas Law is
belonging to warrant case under the Criminal Procedure Code, Schedule
II. In such case, the accused shall not detained more than 30 days. The
investigation should be completed during this period including getting the
prior sanction. If a case is submitted before the Court without prior
sanction, the case is called void ab initio and the accused must be
discharged. In such situation, the new case is brought up before the Court
with sanction. Since the case was sent up to the Court twice, it causes
unnecessary delay.
Another challenge is production of exhibits. The law allows that, if an
exhibit could not be easily produced before the Court, such exhibit need
not be produced before the Court. However, a report or other relevant
documentary evidence as to the manner of custody of the same may be
submitted. In such case, there is no chance to check the exhibits.
Furthermore, there is no specific provisions' relating to the expert
opinion. The law does not mention who will be the experts and how to
get the expert's opinion. In addition, the expert opinion may not be used
as evidence if he does not give evidence before the court. It is also the
one of the challenges to decide the cases.
The Court has power to adjudicate the criminal cases when law
enforcement authorities file the case before it. Even illegal wildlife trade
is traced, the court has no jurisdiction to adjudicate the case. The court
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has only responsible to try the case when the case is sent up to the Court
by the relevant authorities.
6.
Cooperation with the International Organizations
Myanmar signed the “Convention on International Trade in Endangered
species of Wild Fauna and Flora – CITES” in 1997.
Myanmar is signatory to the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES), completely
prohibiting all commercial trans-border trade of big cats (including their
parts and derivatives) listed in CITES Appendix I, and requiring permits
for export of species listed in Appendix II.
At the Special Meeting of the ASEAN Ministers Responsible for the
Implementation of CITES, in Bangkok, Thailand, on the 1st of December
2005, the ASEAN Wildlife Enforcement Network (ASEAN-WEN) was
formally established. ASEAN-WEN, of which Myanmar is a member, is
a regional intergovernmental law-enforcement network designed to
combat the illegal trade in wildlife, with objectives to provide a proactive
response to Southeast Asia’s alarming levels of wildlife trafficking and
biodiversity loss and implement a mechanism by which countries can
share information and learn from each other’s best practices. This broad
based initiative has the potential to improve dramatically ASEAN
Member States’ law enforcement effectiveness.
With the cooperation of international organizations, various projects are
being implemented by setting different goals and targets for biological
diversity conservation, such as: National Elephant Survey (2005) in
cooperation with Smithsonian Institution; National Tiger Survey (1991)
in cooperation with WCS; Designation of Hukaung Tiger Reserve,
Vertebrate Fauna Survey (1999) and Herpetological Survey (2008-2010)
in cooperation with the California Academy of Science; Myanmar11
Japanese Cooperative Inventory and Research Programme of the Useful
Plants of Myanmar (2008) in cooperation with Makino Botanical
Gardens-MBK; etc.
7. Conclusion
Myanmar has sound criminal justice system to combat the illegal wildlife
trade. The fundamental legal framework is also established by enacting
the Protection of Wildlife and Conservation of Natural Areas Law in
2004. To enforce this law, Myanmar has formed National Wildlife Law
Enforcement Task Force in 2007, consisting of several governmental
organizations led by Forest Department. The Task Force had been
reformed on 31st August, 2011. The authorized Forest Staff take the
administrative actions in accordance with law. The Court also passes the
deterrent punishment who commits the criminal offences under the
Protection of Wildlife and Conservation of Natural Areas Law. To
achieve the effective suppression of illegal trade, Myanmar not only
increases the enforcement efforts but also work closely with the ASEANWEN. Since we realized that illegal trade occurs because of market
demand, markets supplying protected wildlife should be shut down and
offenders should be prosecuted to the full extent of the law. To this ends,
Myanmar works more closely with enforcement officials and agencies in
neighboring countries. We firmly believe that International co-operation
with neighboring countries is essential in reducing the illegal wildlife
trade.
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