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
said.
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
expert.
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
King.
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.
