Logo of Phnom Penh Post newspaper Phnom Penh Post - Subdecrees seen as Achilles heel of draft land law

Subdecrees seen as Achilles heel of draft land law

Subdecrees seen as Achilles heel of draft land law

THOUGH an improvement over the present Land Law, the Immovable Property Bill 2000

draft approved by the Council of Ministers on July 21 still contains significant

flaws, legal experts say.

Some of these flaws were outlined in an August 23 letter to the President of the

Education, Religion, Culture and Tourism Commission of the National Assembly by the

NGO/IO Land Law Working Group. The draft land law is now before the National Assembly

waiting for debate.

The letter - signed by D J Ravindran, Deputy Director of the United Nations Cambodia

Office of the High Commissioner for Human Rights - expressed concern about the 18

subdecrees that will be needed before the new law, if passed by the National Assembly,

can be implemented.

"Important principles should be put into the law by the Legislature, and not

left to the Executive to define in subdecrees," the letter says. "The Royal

Government of Cambodia's own Governance Action Plan for Judicial and Legal Reform

recommends reducing reliance on rule by subdecree."

In an interview with the Post, Koy Neam, an independent member of the Land Law Working

Group, said he thinks all laws passed by the National Assembly should have guiding

principles that subdecrees cannot subvert.

"If the Executive makes a subdecree that is not consistent or cannot implement

the guiding principles then I don't think that subdecree is appropriate," he


Subdecrees are usually drafted by the Ministries, Council of Jurors, or Council of

Ministers and signed into action by Prime Minister Hun Sen.

"That is why we want to make the land law's guiding principles more clear,"

said Neam.

"If the Executive is to implement subdecrees then they must be consistent and

in compliance with the principle laid out by the law.

"We should be careful of subdecrees because sometimes they go in another direction

that does not fit the law."

Neam said the parliamentarians must think carefully about land protesters asking

for help - now a regular feature outside the National Assembly.

"They should not pass a law just for the sake of passing the law; it should

address the issues," he said.

The NGO Working Group's letter warns that passing the draft in its current form may

aggravate inconsistent interpretations by the courts.

"A very serious problem with the draft law is its automatic criminalization

of private contractual and other civil rights and obligations for all property infringements,"

the letter says.

The Working Group also calls for all immovable properties of the State, both public

and private, to be identified and recorded in a registry. And this registry should

be annually reviewed and approved by the National Assembly.

This measure would provide clearer accountability and help ensure that proceeds from

sales of state properties actually find their way into the state budget.

The group says provisions in the existing land law that attempt to prevent privileged

individuals from accumulating large tracts of land, and provide for the redistribution

of unused land, are threatened by the current draft.

"These reforms would be weakened by the Immovable Property Bill, which removes

the limits on lot sizes and anti-speculation provisions of current property laws,"

says the letter.

A July 24 World Bank technical working paper, Report on the Legal Framework, agreed

with the Working Group's reservations about the need for so many subdecrees.

"The dependence on subdecrees has inherent risk," says the report. "If

the ministry is not able to generate the necessary subdecrees, then the land administration

initiatives may be frustrated."

The World Bank team examining the draft law recommends that the Bank withhold participation

in a major land administration and management program for Cambodia till the new land

law is passed by the National Assembly.

Legal experts agree that the most significant improvement over the old law is the

extension of ownership rights for land.

There are more options for acquiring private ownership under the draft, including

the claim to ownership of state private land or non-state land if an individual has

possessed it for five years.

And under the new law, people who have occupied or tilled land for at least two years

prior to the passing of the law will have the right to stay on the land for another

three years and then obtain ownership after the registration process is completed.

In the existing law the State owns all land and citizens only own land-use rights,

except for land under residential buildings. In the draft law, ownership rights will

be extended from just residential land to all but state public land.

Under the draft law state private land can be sold to an individual, and poor families

can be given land by the Government as a social concession.

Foreigners are still prohibited from owning land under the draft law, but it does

recognize long-term leases and this should provide foreign investors secure tenure..

A land reform expert who asked not to be named, told the Post the draft law leaves

unanswered many crucial questions and it is important that the National Assembly

include more concrete guiding principles in the law.

He said without these firm principles there is a great risk that future subdecrees

generated by competing ministries could once again throw the law into confusion.

And unless foreign investors have a stronger faith in the consistency of the law,

it will remain hard to convince them Cambodia is a sound place to invest, said the


The new ways of acquiring land could also be jeopardized if the sub-decrees needed

to implement the law become stalled in the Council of Ministers - an all too common

oc-currence for Cambodian legislation.

Janet King, the University of San Francisco's Director of the Cambodia Law and Democracy

Program, said the NGO Land Law Committee will work with the National Assembly's Land

Law Commission, as well as representatives of the parties, to provide education and

advice on the draft bill

King said a new, workable land law is vital to address the landlessness and food

security issues confronting rural people and to allow for economic development and

increased foreign investment in Cambodia.

"If many of the problems that have been created over the past few years under

the old land law are not settled and new ones prevented then Cambodia will be looking

at a lot of civil unrest and instability," she said.

"I think the draft law that is now before the National Assembly is clearly a

big improvement over the last law. It covers some very key areas that were the source

of a lot of problems."

But King is also concerned about the number of subdecrees that will be needed after

the law passes from the hands of the National Assembly.

"One of the big problems with the law is that very, very important parts of

it are not in the head law. They will be in a variety of subdecrees and other regulatory

documents. We would like to see more of this in the head law because it will set

and define some very important principles about land and land management," said


The head law should define the basic principles and the basic methods of allocation

and should clearly delegate who has the responsibility and authority to do what with

the land, she said.

"But it is not in the current tradition of legislative practice in Cambodia."

She said as it stands now, the new law has a much clearer definition of state, public

and private properties and it now designates the Land Management Ministry as being

responsible for implementing and administrating both the law itself and also for

developing and maintaining the land title registry.

And the draft law will recognize the possession rights of people who have acquired

possession under the old land law - though they never obtained any kind of certificates

or title documents. This is critical for a huge portion of the population, particularly

in the rural areas, she said.

But King is concerned about parts of the draft law which make almost any violation

of someone's land rights a criminal offense.

"If every violation of every land right becomes a crime, you would have a great

percentage of the population at some time being nominally criminal when they haven't

actually committed a criminal act."

King said the draft land law is not compatible and will impinge on the draft forestry,

fisheries and environment laws. Thus there is a need to make all these other draft

laws meet the basic requirements of the land law.


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