The Land Law Saga| July 7, 2011
“One does not need expertise in human rights to recognise that many policies of the government have subverted the essential principles of democracy and due process, deprived people of their economic resources and means of livelihood, and denied them their dignity. I have come to believe that these policies are integral to the political and economic systems through which the government rules, which has manipulated democratic process, undermined legitimate political opposition, used the state for the accumulation of private wealth. In short I believe that the deliberate rejection of the concept of a state governed by the rule of law has been central to the ruling party’s hold on power” (Special Representative of the Secretary General on Human Rights in Cambodia, statement to the UN Human Rights Council, 26 September 2006).
Ratanikirri Province has serious issues, and most of those problems involve land. The region is widely known for its rich soil and industrious agriculture industry. Although this fame has had its benefits, more recently Ratanikirri’s agricultural capabilities have caused money-hungry investors to come knocking. You knew a land law blog entry was coming! IBJ runs street law campaigns throughout Cambodia educating people on the land law, and many of our cases involve land issues. I want to share with you some of the academic knowledge I’ve learned through researching and tie it together with my experiences living in the thick of the conflict. As a disclaimer, this is not at all meant to be a complete explanation of all of the land conflicts in Cambodia. I simply want to touch on some of the larger issues.
The land problems are certainly large. Through concessions, forced evictions, forced sales, and deception, about one-third of indigenous land in Ratanikirri has become in possession of government officials or companies. (Here's a recent example of a forced eviction: http://www.phnompenhpost.com/index.php/2011071250337/National-news/fears-for-more-lake-projects.html) Some of you might say, so what? Let them develop. But land in Cambodia is vital for the livelihood of the seventy percent of Cambodia's population that is engaged in agriculture; without their land, they have nothing.
There are three main problems that perpetuate the impossibility of enforcing the land law. First, there is a general lack of rule of law throughout the country (an issue upon which several doctoral theses have been written). Second, Cambodian land law is extremely convoluted. Third, no one knows about it anyway. A little bit of history: during the Khmer Rouge regime law and societal infrastructure was destroyed. Since then the country has transitioned under the leadership of the Vietnamese Communist government, United Nations Transitional Authority (UNTAC), and the Cambodia People’s Party (CPP). With each governmental transition the form of gaining title to one’s land changed. Many people gave up and became illegal squatters over their own land, which is still their status today.
- Foreign Investors
Companies are continually attempting to strong-arm villagers into selling their land. They have been so successful and have obtained so much land that China and Vietnam are now building roads from rural Ratanikirri into their countries to streamline the transfer of the rubber trees. If foreign investors are not able to obtain land through forced sales they can easily make a deal with the government and obtain Economic Land Concessions (see below) over land that is already owned by someone with a thinner wallet.
One village made a documentary about how a rubber company deceived them into selling their land. You can read more about them and their documentary at http://khmernz.blogspot.com/2009/04/villagers-make-statement.html. The village is still in the courts litigating this issue.
2. Government and the Courts
One large problem with absence of the rule of law in Cambodia is the lack of an independent judiciary, which is strongly tied to the government. Article 128 of the Constitution states that “the judicial power shall be an independent power,” but this is not the case in practice. Judges and prosecutors are appointed and removed by the government. Even police and the Cambodian Bar Association are tied to the government and despite the pressure to establish independent institutions the government has taken few steps to do so. They retain strong control over each step in legal procedural process. One NGO has an up-and-coming case where they’re defending a local who is trying to keep his land, but one of the investigators told me that the case is basically hopeless since the plaintiff is a government official’s cousin.
Ratanikirri is packed full of NGO’s working on land issues. Unfortunately most of the people I know working on land projects feel as though they’re running into a wall. Cambodia has the second most NGO’s per capita—behind Rwanda—and yet the land situation continues to get worse. Organizations are certainly attempting to help individuals on a case-by-case basis, but it is difficult to perpetuate change in an environment where one group controls everything legal and political.
Of course, the most important players here are the people continually losing their land. I don’t think there’s room here for all of the horrible stories I’ve heard about people losing their land. If you’re interested, here is a great article with lots of case studies: http://www.ngoforum.org.kh/eng/llp/llpdocs/FinalLandandHousingAnnextoParallelReport,FINALVersionApril09.pdf.
- The Land Law and Economic and Social Land Concessions (ELC’s and SLC’s)
ELCs were written into the 2001 Land Law in hopes of promoting large-scale agricultural development and investment. SLCs allow the transfer of state private land to individuals or communities for residential and agricultural land. While ELCs are meant to help businesses, SLCs were enacted to create a mechanism for land transfer to the poor and landless. You can guess which is more widely used. Many allege that ELCs were created merely to create a legal framework for land-grabbing, and that SLCs provide a nice distraction for NGOs and foreign governments that support the 2001 Land Law. ELCs can be granted to individuals as long as the transfer advances the public interest, a conveniently ambiguous term. As a result the government inevitably grants concessions over land that is already owned and occupied by disadvantaged ethnic Khmer or indigenous people, forested land, state public land, etc. There are requirements before the government can grant an ELC: the land must be registered as state private land and public consultations, environmental, and social impact assessments must be conducted. As could be expected, none of these requirements are followed. There is also a 10,000 hectare size limit (~24,711 acres), which has not been met; individuals can easily obtain multiple adjacent concessions. There are other issues of course…You can read more about land concessions at http://cambodia.ohchr.org/WebDOCs/DocReports/2-Thematic-Reports/Thematic_CMB12062007E.pdf.
2. The Land Law and Ownership
The Cambodian Land Law of 2001 also attempts to grant land registration rights to local people, but coupled with the ELCs, this right is generally ineffective. Again, the three major problems with the land law are 1. It’s not followed, 2. It’s confusing, and 3. No one knows about it. I have friends that are working to educate villagers on the land law, encouraging them to register their land so that they have proper title. As soon as I met them, they asked me to clarify parts of the law for them since I have a legal education. But even I, with my, ahem, one year of legal education, couldn’t fully understand what the law means for the local people. One can visit any lawyer in the region and each will have a different understanding of what the law attempts to accomplish. Worse, even if the villagers register their land the law doesn’t do anything for them in court. A company might sue a village for not handing over their land and the defense attorney will show the villagers’ title coupled with the Land Law. The investigating judges and prosecutors will easily counter by showing the company’s ELC, signed by the government.
The Land Law also makes it so that indigenous land is collectively owned and must be collectively sold. This also is not followed. I saw an example of this when a friend showed me a map where one weasly villager sold a massive chunk of collectively owned farmland to a Chinese rubber company without telling anyone else. Once the company had the title over the land the villagers could do nothing even though the land was certainly not collectively sold.
3. The Constitution/Criminal Procedure Code/Criminal Penal Code/Universal Declaration of Human Rights…etc.
As I work on an e-learning training manual for future defense attorneys in Cambodia, I learn a lot about the legal rights of citizens here, and what is occurring is absolutely against Cambodian law. Here is one example from the Constitution, the highest law in the land (“ch’bup k’pbooah jeeung gay”). Article 44: "All persons, individually or collectively, shall have the right to ownership."
In addition, the Constitution and the Universal Declaration of Human Rights (which the Constitution adopts under Cambodian law in Article 31) guarantee all citizens equal protection under the law. This should equate to equal protection of the right to ownership enshrined in the Constitution. Unfortunately people in Cambodia are not treated as equals under the law in practice. Although the State has attempted to make laws that protect the disadvantaged, the legal environment has been disproportionately harsh to those with less money in their pockets.