Leechings, beaches and the law| June 25, 2011
Sorry I haven’t written in a while, but life has been pretty busy in Phnom Penh and making the best of my experience here is proving to be tiring work.
Since my last post, I have traveled to two more provinces. On the weekend of June 11th, we traveled to Koh Kong. While planning the trip, a group of us had the bright idea of going on a jungle trek. As a bona fide city-slicker, I have rarely even hiked, much less “trekked,” but since I am in Cambodia I decided to go for it. Instead of bussing this time, we took a taxi and travelled to the Dug Out where we spent the night. The next day we took tuk-tuks to a truck, where 9 of us piled in (2 in the cab and 7 in the open bed) and then set off on a 1 hr ride to the Cardamom mountains and their jungles. When we arrived, our three tour guides informed us, somewhat belatedly, that we were going to be trekking through the jungle in leech season. I was lucky enough to have worn leggings and sneakers to cover my legs, but several of our friends wore shorts with low top sneakers. Since they couldn’t exactly go back and change, they pulled up their socks and decided to hope for the best. To help us on the trek our guides gave us sticks with a tobacco, soap and salt pouch rubber banded to the end. Despite initial skepticism, we soon realized that these were magical sticks. The first leech attacked after we were five minutes into the jungle. Now, the jungle leeches here are not like the big, fat, slow and bulbous river leeches we have in the state—no, these leeches are small, wily and conniving. Not only did they try to stick to our feet and sneakers—and even crawl through the holes on the side of some peoples’ Converses—but they also took flying leaps of faith to find purchase in fun places like our backs, stomachs and upper thighs. The experience all in all was lovely, the forest was pristine and our guides were great at pointing out strange animals and plants, but by the end of the two hours all of our nerves were so frayed that we were happy to get back to the truck for a snack before heading out to the waterfall with our guides.
After a snack of mangosteens, rambutans, bananas and these mini mangos our guide got off one of the trees, we climbed back into the cab and headed off to find the waterfall. We parked our car near a small forest home, and the locals were apparently having a dance party. One of the women came over and had lots of fun teaching the burang (foreign) men to dance. We then did some more trekking to the waterfall, and there were a lot of slips and falls (note: near death experiences) since the stones were slick with spray and moss by the time we were closing in on the water. A group of us, myself included, climbed to the back of the waterfall and had a blast trying to scream over the roar of the water and trying to hear our echoes. We then climbed down to the lower rapids and calmer waters where we had lunch and a nice swim. A few of us discovered leeches hiding and chowing down in our socks and shoes so all of us have marks to remember the trip by. It rained while we were swimming, and our trip out of the forest was decidedly less enjoyable since the leeches came back with a vengeance. They like moist environments, so after the rain it was open season on us succulent humans.
We then had dinner in a small clearing in the forest where our guides barbequed meat and veggies over an open camp fire. The food was some of the best I have had in Cambodia and when it started raining again we all huddled under a tarp the guides hung over forest branches. On the way back three people squeezed into the cab and the rest of us spent two hours in the pouring rain riding back home. That has to be the coldest I have been in Cambodia.
The following weekend we went to Kampot and Kep. The trip was much less eventful but much more relaxing. We took a boat trip and some people paddle boarded while in Kampot. Most of us also got our first experience with traditional Khmer style bungalows and mosquito nets. In Kep we stayed at a beautiful little French place on the mountain side called Le Bout de Monde. The hotel was lovely and if any of you ever come to Cambodia, make sure you visit! On Sunday we took a boat to Rabbit Island. I have to admit, when I heard you can take a boat across to this island in the middle of the sea, I imagined something akin to the Staten Island Ferry. Silly me for forgetting I was in Cambodia. Instead of a ferry, we chartered a small, longboat style contraption for the day. The longboat had one motor and a teenage boy who decided it was fun to a) steer with his feet and b) hit waves on the side of the boat as opposed to head on like you’re supposed to. Needless to say we were all soaked before we even got to the Rabbit Island beach to swim and the boat seemed like it was going to capsize at least 5 times. The boy was quite dry at the end. We then spent a couple of hours on the beach and all got burnt by the deceptively overcast sun and headed back home in the afternoon.
Although my travels and adventures have been quite fun, I am sure that you all are not reading this blog just for travel tips. In addition to traipsing around the country, I have also been doing some interesting assignments at work. We are continuing to work on our industry summary reports, but for the last two weeks we have gotten very involved in two separate projects. One project, which has been commissioned by the government, revolves around land disputes in Cambodia. As it stands, land law in Cambodia is fairly vague. Although there are seemingly strict laws on the books, in practice, the law provides many loopholes which are often utilized by private individuals and government officials.
In the past decade or so, Cambodia has seen an exponential rise in interest from foreign investors. Many investors look to Cambodia because of the abundance of “unused” land, the large, young work force and the prime weather conditions for many large agricultural staples. Despite favorable conditions, in many instances, Cambodia does not have sufficient capital to self-fund development projects. As a result, in 2007, the Kingdom promulgated the Law on Concessions, which is intended to increase foreign investment in the country. Under Cambodian law, a foreigner cannot own the “ground level” of Cambodian soil. What this means is that foreigners can own apartments (provided they are not on the first floor), but they may not actually own plots of land. Concessions are a way to get private investors in without providing land titles. Under a concession, the government grants a private party a plot of land for a period not to exceed 99 years. In general, concessionaire’s are given rights to develop, build and excavate the portion of land they are given. In return the government is paid a portion of the profit or regular monthly fees (this is determined by a bilateral agreement). The three main types of concession are 1) social concessions, 2) economic concessions and 3) infrastructure and development concessions. Social concessions are used to provide impoverished families with residential or farming land, but in recent years their use has been limited. Alternatively, economic and development concessions have been used consistently and the number of concessions issued in these fields continues to rise.
Concessions, although outwardly a positive thing for the development of the Kingdom, have resulted in many ongoing land disputes and numerous evictions. Under the law, concessions may only be granted on State private land. State private land is land that does not provide a public use and that is not owned by private individuals. A huge portion of Cambodian land is actually considered to be state private land because many Cambodians do not actually have ownership rights or title to their property. The Land Law, which describes the rights of private ownership and possession, was not issued until 2001. Technically, people who reside on a property for more than 5 years, and lived on the property for at least some time prior to 2001, have the right to get title to their lands. However, many impoverished families, both urban and rural, have no knowledge of the process by which they can acquire title and the government efforts to educate individuals have not been extensive. The government can refuse applications for title at their discretion and there is no cohesive process by which an individual can adjudicate the issue. The courts also tend to favor government policies.
Since large swaths of land are considered to be state private land, the government will often grant concessions to tracts that are occupied by hundreds of families. After the government issues a concession, they are required to help a concessionaire get full possession of the property. This step is when evictions occur. Tens of thousands of people havebeen evicted in the past ten years. Although the Cambodian Constitution and the Land Law require the government to pay compensation, such compensation is only mandated for property owners. Renters, and people who have possessed a property for years but not filed the proper paperwork are not legally entitled to any compensation or resettlement packages.
Some properties have skyrocketed in value and the government has made sincere efforts to capitalize on the growing property values. As a result, the poor urban families on these tracts are often forced to leave so that the land can be developed. Proper title does not necessarily protect a family from eviction; it simply means they can receive compensation. Local newspapers and international NGOS have reported that this compensation is often for sums far below market value, or for resettlement to communities that do not possess adequate accommodations. Although some evicted residents have brought cases with the help of international NGO’s, the cases often flat line after several months. Some settlement cases have been more successful.
By law, the government is not allowed to grant concessions for public state lands. Public state lands are defined as lands used for the public interest and include some forests, rivers and lakes. However, lake and riverfront property has become a valued commodity and often the government will issue decrees that reclassify such properties as state private land. Families that live on such land, since they cannot own title on public land, are commonly referred to as “informal settlements” or “illegal settlements.” They are not legally entitled to compensation and in a recent case regarding Boueng Kak lake, a central lake in Phnom Penh, the government and Shukaku, the Chinese concessionaire, have to date not provided residents with any compensation.
These land disputes present a huge problem for Cambodia and have garnered much attention from the international community. Informal settlements are scattered around the city and families have no way to engage in a meaningful discussion with the government about these problems.
Although the law is in need of improvement, it is uncertin how quickly the Government will seek to complete these improvements. For our project we compiled recommendations for improvemenst and case studies in the subject matter. I believe that there will be some subtantial changes taking place in the land law in the next several years. Andrea and I have volunteered to do a comparative law presentation showing parallels and contradictions between the concept of US eminent domain and current Cambodian land law. It will be interesting to see our co-workers opinions on the matter.
The second project we have been working on involved preparing a foreign company to make initial offerings on the Hong Kong Stock Exchange. I have thus far completed factual and grammatical checks on the submission report documents and last week Andrea and I attended conference call sessions with the legal team handling the matter. On this matter, we are working with several foreign attorneys who represent our client. Our counterparts are all international and come from all over the world, meanwhile our counselors are mostly Khmer. This hodgepodge caused quite a bit of confusion during the first portion of our conference call. After about 10 minutes, Andrea and I quickly became a part of the call as I translated and synthesized the questions posed by our (sometimes) heavily accented clients and Andrea compiled responses that were very easy for the international clients to understand. The conference went much faster once we were able to explain to our Khmer team what the clients were actually asking (many of their questions did not easily translate to Khmer legal terminology) and the clients knew what our attorneys were responding. We have since taken part in one additional conference call and used the same communication process, which made the conference much more efficient.
One of the most interesting parts of the whole process was the failure of the foreign client’s to understand the rather fragile nature of Cambodian law. As a U.S. Citizen who has grown up in a sue-happy culture and is now attending an American law school, I well understand the wish to cover oneself and ensure immunity from any liability. This sentiment was also evident among the several Americans and foreigners on our client’s team. Many of their questions centered on ways to avoid liability or to definitively calculate penalties and sanctions. Unfortunately, the Cambodian system is mainly done on a case by case basis and eventual sanctions are based on the discretion of a deciding judge, ministry official or commissioner. As a result, certainty is not easily acquired. Despite our Khmer attorney’s efforts to explain this, it took Andrea to, in very precise language, explain that whether it was or was not logical, the Cambodian legal system was not as finite as many Western systems and the only sure way to calculate and limit liability was not to be liable for anything. Although difficult, the foreign clients finally seemed to grasp the concept and understood that they were not going to have 100% certainty when building a business in a developing nation.
In addition to this work we have also remained involved in adoption cases and have attended meetings and assisted with materials for two existing clients. We were also able to provide commentary and advice in an initial consultation with a perspective client since the attorney in charge of adoption is on leave for 2 ½ weeks and we have become fairly well versed in Cambodian adoption law.
Well that is about it for now. To make up for last week, I have made this post quite long since I have not written for 2 weeks. I will try my best to write a normal sized post next week with any new developments.
Reah-trey suor sdei! (good night!).
P.S. I have ridden a moto maybe 15 times now and not ONCE am I wearing pants. I have, however, become an expert at side saddle and there is decidedly less clutching to the little side handle.