Q&A with Fadzilah Majid-Cooke: land rights and agricultural investments in Southeast Asia

While national and international legal developments strengthen protection for investors and investing economies, they afford far less protection for local communities. In this context, civil society groups are using various tools and strategies to give citizens and farmers a stronger voice in agricultural investment.

Some of these include innovative forms of legal aid and legal education, alongside campaigns for legal reforms and challenging investment laws and procedures on their constitutionality. These strategies and tools were also the topic of a recent public forum and civil society workshop meeting of groups from across Southeast Asia, which was hosted by IIED and Focus on the Global South.

Dr. Fadzilah Majid Cooke is Associate Professor in Environmental Sociology at the School of Social Sciences, Universiti Malaysia Sabah (Sabah University of Malaysia). She has worked in the area of agricultural and forestry politics and development as well as in environmental change and customary land for close to 15 years. She is currently working on customary land issues in southern Thailand and in southern Philippines, through an Asian Public Intellectual Fellowship.

IIED researcher Emily Polack spoke to Fadzilah Majid-Cooke about her impressions from the meetings.

Would you say there were more differences or similarities between the contexts and types of legal strategies the different participants are engaged in?

The workshop brought together participants from Myanmar, Thailand, Laos, Cambodia, Vietnam, Indonesia, Malaysia and the Philippines. Surprisingly, after listening to the three days of discussion, there appear to be more similarities than differences within the Southeast Asia region with regard to the status of citizens’ land rights and the types of redress mechanisms that people have available to them. There are however some differences in the degrees of political control and freedoms that determine the relative space for, or size of, civil society, including access to media and the role of electoral politics.

Q: In the forum you raised an interesting question about needing to generate alternative visions of ‘modernity’ and how, through this, we can respect and protect those producing our food?

FM: Yes - similarities are also seen across the region in the model of development that tends to be more top down. The encouragement of farmers to exit agriculture or to move into wage labour on estates or plantations as a way out of poverty is reflective of a common view of ‘modernity’. The dominant industrial model leads to subsistence and smallholder agriculture still being perceived as holding back ‘modernity’. So modernity is not merely a transformation of the landscape but a particular type of development that is based on an ideological platform that large is best, or big is beautiful. This ideological position has stuck and is being reinforced through globalisation as production for the markets becomes more entrenched over the social aspects of agriculture which emphasise the cultural and social significance of production.

Q: What did you personally find most interesting about the debates during these meetings?

FM: I have learnt from this workshop that in Lao PDR there is limited understanding or provision for customary rights. So there is lots to be learnt between countries in Southeast Asia, especially from those that have some provisions in their legislation for the recognition of customary rights.

Having said that there is a common problem facing many countries in southeast Asia and that is the only partial recognition of local rights when customary law is superimposed by statutes. Under legal pluralism, statutory legal systems that are being applied locally, and customary laws are accompanied by a set of political and economic relations which often undermine recognition of customary rights to land, or at best partially acknowledge their existence.  In many systems where there is legal pluralism, customary rights to the land are acknowledged by the state only when the lands are titled. Since a large proportion of lands are untitled then, they risk losing it.

This partial recognition faces further challenges in relation to the political space which determines the nature of the work of civil society. Limited political space in some countries means that engaging with government and building synergies may need to be approached with ‘cautious enthusiasm’.

Q: We’ve heard about and discussed some very challenging contexts in which power imbalances mean that governments become beholden to investors as international investment agreement and contract enforcement powers on the part of companies are much stronger? What are some strategies going forwards to tackle this problem?

FM: My feeling is that governments are often interested in trying new ideas and strategies, but are not necessarily getting the right kind of information at the right time. For governments who find themselves caught up in the complexities of global capital and natural resource exploitation, and its effects on the environment and livelihoods, the avenues to achieving greater social, political and economic stability may be unclear and difficult.

Dr Nirun of the Thai Human Rights Commission who was a speaker at the workshop drew attention to international human rights mechanisms, such as the United Nations Special Rapporteurs, who can provide important guidance. It would make policy implementation less conflictual and complicated if willing governments could also look into and support the work of civil society that is trying to establish how principles such as establishing Free Prior and Informed Consent can be implemented in practice. 

Emily Polack spoke to Fadzilah following a one-day public forum with government representatives, private sector and civil society, students and professors from across Southeast Asia at Chulalongkorn University. This was followed by two more days at which civil society groups shared experiences of engaging with the law to strengthen the rights of farmers facing large land based investments in agriculture.