Many of the recent land swapping deals between the government and private companies
violate Cambodian law and blur the distinction between public and private lands,
legal experts say.
Several cases of the government trading state-owned properties to private investors
have surfaced over the last two weeks, with some transactions deviating from the
intentions of the 2001 Land Law.
"Selling state-owned lands is up to the government - of course there will be
winners and losers," said Eric Huybrechts, an urban planner working with the
Phnom Penh Municipality. "But in Cambodia we are still building the laws, so
there are lots of holes and mistakes."
Private investment firm Phanimex Co. Ltd. revealed January 18 that it had acquired
the Phnom Penh Municipal Police headquarters near the Central Market in exchange
for the construction of new headquarters nine kilometers outside the city. A senior
police official also reported that the Municipal Traffic Police Department headquarters
on the corner of Monivong Blvd. and Russian Blvd. was sold to an unnamed private
firm about a year ago.
In a more nuanced exchange, New Hope Co. Ltd. recently agreed to pay for and build
a new Ministry of National Assembly and Senate Relations and Inspection on a formerly
public field in Phnom Penh's Tonle Bassac commune.
New Hope is registered at the Ministry of Commerce under a nonexistent address. The
company will receive all of the land not occupied by the building, said Kep Chuktema,
governor of Phnom Penh.
"People are saying the government sells public land," Chuktema said. "But
they don't understand that the government can change (land) from public to private."
This is only partly true.
The 2001 Land Law divides state-owned properties into two categories: public, which
have some kind of explicit public function, and private, which do not. While Article
17 of the law confirms that private state-owned properties "may be the subject
of sale, exchange, distribution or transfer of rights as it is determined by law,"
Articles 16 and 19 forbid and criminalize the privatization of public state-owned
There is a loophole, however. When state public lands stop serving the public interest,
the law says officials may use legal channels to convert them into private properties
of the state. They can then be sold or exchanged.
But there is no law governing this conversion. At the time the Land Law was written,
its authors expected another document would outline the process of transforming property
from state public land to state private land.
"They never made a law, so people shouldn't be trading these properties,"
said a foreign legal expert who spoke on condition of anonymity. "You cannot
sell state public land - it is simply illegal."
As a result, officials often decide subjectively which lands are "serving the
Further complicating the situation is the ambiguous definitions of public and private
state land. Article 15 in the Land Law lists some vague examples of public state-owned
properties - such as parks, railways and governmental administrative buildings -
but it doesn't go into detail. Though the Ministry of Land Management has drafted
a sub-decree with clearer definitions, it has yet to be officially approved.
The field in Tonle Bassac commune illustrates the subjectivity of conversion to private
property. Until recently, the field was a recreation space used by the public and
had gained state public land status, said Chhuon Sothy, director of land management
at the construction and cadastral office for the Phnom Penh Municipality.
But "the government decided the public asset was not useful for the public good
anymore," said Sothy, and converted the field to state private property. Even
though part of the property will still serve a public function, the portion given
to New Hope will be privately controlled.
Chuktema, who sits on the Ministry of Economy and Finance's five-person committee
that handles state property transactions, said the body decided building a new ministry
in the space was more important than preserving a park.
"The government identified a new Ministry of National Assembly and Senate Relations
and Inspection [to be built on the field] as a top priority," he said.
Huybrechts said the decision may be logical, considering that there are already a
good number of parks in central Phnom Penh. But he added that even if individual
decisions make sense, there should still be regulations governing such exchanges.
Officials often don't consider the public interest, and negotiations, bidding and
contracts are all conducted in secret, said a local human rights worker.
"We don't know how much (the government) sells properties for, how much they're
worth, how much the new buildings cost," said Licadho founder Kek Galabru. "We
want to see if there is balance - opaqueness opens doors for illegal deals and corruption."