Land grabbing is not simply a human rights issue. It is a commercial law issue with powerful international implications. While the guarantee of land rights to all citizens has real human rights significance, international commercial courts and commercial attorneys remain far more available to litigate disputes. And the sooner attorneys reframe the issues, the more available remedies will become.
In 2001, Cambodia passed a respectable land law, and promised in Article 30 that “Any person who, for no less than five years prior to… this law, enjoyed peaceful, uncontested possession of [land] that can lawfully be privately possessed, has the right to request a definitive title of ownership.” This provision, promoting land ownership for refugees from the Khmer Rouge period, stemmed from Article 44 of the 1993 Constitution: “All persons, individually or collectively, shall have the right to ownership…. Legal private ownership shall be protected by law.”
The well-publicized land grabbing case in Koh Kong, near Sre Ambel, involving sugar cane, provides one important example of the commercial approach. Although first presented as a local human rights matter by Kek Galabru at Licadho, the application process for an economic land concession for sugar cane never involved the resident farmers, many of whom acquired their rights under Article 30. A powerful friend of Prime Minister Hun Sen, Senator Ly Yong Phat, who sponsored the concession, utterly skipped the survey requirements, and rolled over the farmers’ land without warning. Ly’s eviction process occurred at gunpoint. Ly offered no reasonable compensation, even when challenged.
These acts on their face raised both serious human rights and commercial issues, because Article 35 provides that, “Only the competent authorities may…force occupants without title or insufficient titles to vacate [land]. Individuals or authorities not acting on behalf of the State or public legal entities are not competent to remove forcibly a peaceful occupant holding valid title. Removal can only be made by court’s order…”
If someone takes land illegally, the land still belongs to the owner in the eyes of virtually all jurisprudence, including Cambodia’s.
If the evicted farmers still legally own the land, then under Article 95 they still own the crops raised on the land. And where their crops travel, so do their rights. For those who reframe the issue as a commercial deprivation, this means a fair hearing in real commercial courts outside of Cambodia. In the Koh Kong case, we (attorneys and volunteers) followed the sugar to the U.K., and with the help of a local law firm brought 200 claims there. A strong possibility now exists of a settlement in which the Koh Kong farmers will receive good land and money.
Property exists only when a government enforces the rights of all lawful owners or possessors. Jeremy Bentham put it succinctly: “Property and law are born together, and die together…. [T]ake away laws, and property ceases.” At its core, property is merely a system of control over a res, or thing, recognized by the enforcers of the system. In the absence of law enforcement, land ends up in the hands of the strongest trespasser. Article 44 of the Constitution should oppose this: “The right to confiscate properties from any person shall be exercised only in the public interest…and shall require fair and just compensation in advance.”
Much of the problem rests with the local courts. A nation of laws, and not men, provides a better system of justice than a nation of men, and not laws. When powerful individuals suppress institutions, predictability and trust disappear: justice becomes a mere specter. Any land law provision, human rights or commercial, renders itself useless without enforcement by meaningful courts.
Reports in The Cambodia Daily from April 22, 2013, studies by the International Monetary Fund, and analyses by numerous other institutions, lament the corruption of Cambodia’s courts. Although Article 128 of the Constitution requires the courts to remain independent and impartial, and protect the rights and freedoms of the citizens, the judiciary often makes little pretense of independence or effectiveness. More often, the courts protect the land rights of the powerful over the poor.
Citizens often suffer charges of “criminal libel” because they contest the actions of powerful businesses. In other words, the courts, rather than protect the rights of affected landowners, prosecute them for asserting their rights. The use of the legal system to oppress, rather than to check overreaching power, remains the primary problem with land grabbing.
How can anyone fairly bring a land claim inside Cambodia if the courts punish the victims? Lawyers should take their cue from the weakness of human rights enforcement and understand that the loss of land is not just a violation of human rights, but a commercial loss that adversely affects international trade and market stability.
Many brave people risk prosecution in opposing the current land grabbing policies. However, as long as the courts fail to protect the rights of landowners and lawful possessors, the entire system, and country, will function like a Potemkin village. Cambodia must insure an independent judiciary, and must promote justice in its land policies.
Mark Moorstein is a Virginia-based land use litigator who has advised rights groups representing farmers displaced by a sugar cane plantation in Koh Kong province.