Unscrupulous speculators and a corrupt court system are being blamed
for the recent spate of land grabs from farmers around the country but as Beth
Moorthy and Bou Saroeun discovered even if the land laws were enforced
it is far from certain the actual land owners would be better off.
LAND law reform is a crucial issue for Cambodia's civil development.
Donors pressed for reform at the recent Consultative Group meeting, and a new law
is a requirement for the Asian Development Bank's next set of loans.
Violence, corruption and bureaucratic backlogs add to the problem of vague legislation.
"We have a land law, but the implementation is poor," said Lim Van, director
of the territorial organization department of the Ministry of Territorial Organization.
"Bullets win over the implementation of the law."
Even those who try to follow the law strictly can encounter insurmountable problems.
A note on the official Certificate for the Right To Possess Real Estate form reads:
"If you have obtained this certificate for the right of real estate possession
by inheritance. . . please don't forget to bring the owner of the real estate to
make a written document before the competent authorities . . . If you fail to do
this, then the real estate cannot be considered as your legally secured property."
The government is in the process of drafting a new land law, intended to replace
the 1992 law now in force, which land rights experts say is hopelessly inadequate.
A working group of legal and human rights NGOs has spent five months preparing a
counterproposal, which was presented to the Council of Ministers on Mar 30.
The current draft of the land law still "creates many loopholes for abuse and
corruption," reads the working group's report to the Council of Ministers. Lim
Van said the government will need to look carefully at the 372-article NGO proposal.
"It is not easy to do quickly, without thoroughly thinking about the impact,"
Each side agreed that the meeting was valuable both on substantive issues and as
an example of the government seeking input from the NGO sector.
"You must [not only] write the law, [but] look at applying the law," said
Cambodian Bar Association president Ang Eng Thong, a member of the working group.
The government is expected to take two months to finish the draft and present it
to the National Assembly.
In the meantime, thousands of Cambodians are struggling with land disputes.
Legal Aid of Cambodia officials estimate their land-related caseload is 15,000 clients.
The main problem in most cases is that ownership of land is difficult to determine
under the present titling system.
A 1996 demographic survey found that 95 percent of rural and 93 percent of urban
households identified themselves as "owner occupiers". Yet in another study,
over 70 percent of people surveyed had no legal documentation of their ownership
In 1979, following the overthrow of the Khmer Rouge, establishment of land ownership
was hopelessly difficult.
In 1989 the government passed application guidelines meant to aid citizens who currently
were in possession of land to register usage rights; claims prior to 1979 were void.
According to the current system, there are two ways to claim land in Cambodia: either
to have an official title, or to prove you have lived on the land for five years.
But the second method, which requires a letter from the commune chief attesting to
the occupancy, has long been problematic.
"This led to widespread abuses of power in the form of charging for proof of
receipt of these letters and dispossession of occupants by non occupants who pay
bribes for these receipts," said the Working Group report.
The NGOs recommended the requirement of the commune chief's letter be abolished.
Those who manage to get the letter from their commune chief have only begun the uphill
battle for title. The under-funded, under-trained Land Title Department has only
processed ten percent of the 4.5 million claims filed after the 1989 legislation.
"If we continue working on the claims this way, it will take us 200 years,"
admitted Lim Van. But he added that with sufficient funding it could be completed
in a mere ten years. The Working Group report adds this caveat: "Most of these
applications have been sitting in District Land Titles offices for more than five
years and are worm-ridden, dusty, moldy and therefore indecipherable."
Even with legal titles, land owners are vulnerable to those who can bribe their way
to competing titles or bribe judges in land dispute cases.
Another gap in the current legal regime is the lack of adequate recognition of the
rights of minorities like the Ratnakiri hill tribes.
"The semantics of the Land Law of 1992 are being used to dispossess native title
"Their historic connection to the area are rendered impotent by the legal denial
of the validity of pre 1979 claims," reads a 1999 report from Oxfam's Cambodian
Land Study Project.
Recently demined land is another problem; it is a prime target for expropriation
by opportunists. Many recent land disputes have involved demined land which has been
immediately seized by local military officials.
Another problem is that of confiscation of private land for public purposes. Article
44 of the Constitution allows such confiscation provided fair compensation is paid.
But there is no legal provision to set fair compensation, nor is there an appeal
mechanism. In addition, without proper title to the land in question, compensation
is not required.
Lost national revenue is yet another legacy of poor land law implementation. Lim
Van says the government still manages to collect $3m a year in land tax.
However, the Oxfam report estimates lost revenue through non-collection of land tax
at up to $12m per year - less than the amount needed for a thorough mapping and land
A map-based titling system is crucial to land law reform, according to the report's
author, Shaun Williams. "Three-fourths of the problems are because there are
no maps," he said. Such a mapping project is in fact underway in pilot form,
run by the Finnish organization Finnmap International.
Using aerial photographs, the consultants have tested methods for systematic land
registration in Takeo province.
After a series of meetings with local authorities to explain the procedures, a Documentation
Officer and an Adjudication Officer visit the area with the aerial photographs and
discuss land borders with residents.
If neighbors agree on the demarcation of land, the borders are mapped.
If neighbors disagree, the adjudication officer hears testimony from both sides,
and tries to make a decision. If one side still objects, the courts are a final recourse.
However, such disputes have been rare, according to Finnmap consultant Mika Torhonen.
And land experts deem the pilot project a success.
Now the consultants are waiting for the government to pass the required sub decree
to make their method a legally recognized system of registration. "We look forward
to the government adopting it," Torhonen said. "But right now the land
law is the first priority."
Current hotspots for land disputes
Hotspots for land disputes
The information was provided by human rights groups, legal representatives
and interviews with land owners.
Representatives of 54 families from Poipet spoke to Sam Rainsy Party MPs on Mar
25, asking for National Assembly help in their land dispute. Village leaders allege
that local military officials illegally seized their land, then convinced the local
court to sanction the switch of ownership.
Choeung Teanh Thmey village. Locals claimed 500 hectares of land spread across
154 families had been siezed by soldiers from Region 5. The soldiers initially built
a barracks on the land and are now selling off parcels to investors.
In Bavel district villagers claim that the army has taken 491 hectares of their land
and is selling it off at 10,000 baht a hectare.
LAC is representing four families who have lost their land despite having lived
there since 1991. A local businessman borrowed money from the wife of a police official,
using a land title as collateral. When he defaulted, the creditor took possession
of the land. The families, who claimed the title was fake, went to court to claim
back their land. But the judge decided in favor of the creditor, despite evidence
that the families had possession of the land and that the law prohibits using land
as loan collateral. The appeal is pending.
Representatives from seven villages in the Tbong Kmom district have been camping
outside the National Assembly in an attempt to reclaim 2000 hectares of land they
say was siezed by the district and deputy governor and the commune chief in1997.
One of villagers, Mat Nou, 60, said they had been told by the people who siezed the
land that they were not entitled to it because they were Cham muslims and it was
being reserved for Khmers.
Nou said that they feared there would be no solution to the problem unless Parliament
or the King intervened.He said they had been farming the land since 1979 but now
they fear it will be sold to investors.
A general has defied three court subpoenas in connection with his eviction of
about 300 families from what they claim is their land. He has also suspended 10 of
the evicted people, who are his soldiers, from their jobs. The judge is consulting
with the Justice Ministry to try and get the general to comply with the subpoenas.
Village authorities said that men came and asked them to thumbprint some papers,
which they couldn't read. The villagers said they thought the papers were "receipts"
for the motorbikes and rice the men said they would give them. Now, however, the
villagers believe the papers they signed gave away their land to a local general,
as some local authorities reportedly told them this. Fences have been erected on
the land but the villagers are continuing to try and use it. They want to file suit
to claim their land.
In Takeo 61 families are trying to get back land they said was taken ostensibly for
a public park but instead is being used for a CPP provincial headquarters.
Chamcar Chek village: 386 people are trying to hold onto 300 hectares of land
that General Chum Tong Ieng wants to sieze in part as personal property and part
for a development to support the army financially.
Trea village, Khan Meanchay: 300 families and a pagoda with 86 monks are facing
eviction, without compensation, from their land which has been slated as the site
of a horse racing track.