The government is drafting an expropriation law that would allow authorities to confiscate private property if it is deemed to be in the public interest, according to a draft copy of the legislation.
The draft details the legal procedures required when the state needs locations for expanding the country’s infrastructure and other constructions used for the public good, such as airports, ports, parks, parking lots and sewage systems, according to a copy of the draft, which was obtained this week but could not be independently confirmed as many government officials were unfamiliar with the legislation.
“This law aims to fulfill the state’s need to find locations for construction…in a legal way in compliance with Cambodia’s development and to solve complicated [issues] over locations that the state needs temporarily and/or permanently in the public’s interest,” according to the 42-article draft, which was, according to the document, debated at a Council of Ministers meeting on Sept 10, 2008.
Nun Theany, spokeswoman and deputy director general at the Ministry of Land Management, said she was aware of a draft law on expropriation but that it is currently with the Ministry of Finance, which is amending the document, as that ministry is responsible for drafting the law.
Ministry of Finance Secretary of State Ou Bunlong said he had heard about a law being drafted but he didn’t have details. The ministry’s secretary-general, Hang Chuon Naron, said this week he was also not familiar with the draft law, but would look into the matter. Secretaries of State Chea Peng Chheang and Ouk Rabun could not be reached for comment.
According to the draft, the Ministry of Finance will lead an expropriation committee, which will include representatives from other government bodies, and the function of that committee will be detailed in a separate sub-decree. An expropriation sub-committee led by municipal and provincial governors will also be formed and it will have the authority to issue and enforce the decisions of the expropriation committee.
In addition to infrastructure and development projects, the draft also defines public interest as projects and “necessary constructions for the national defense work or civil security work and holding the land or properties to implement the policy of protecting sovereignty.”
Before an expropriation can be carried out, the committee or sub-committee must investigate the land or property in question. The investigation must be conducted in public, and consultations must also take place with local authorities and affected parties.
After the government has decided to carry out an expropriation, property owners have 30 days to review the investigation. However, owners will not be allowed to review the investigation if the purpose of the expropriation involves building large roads, railways, electricity systems or gas pipelines, the draft states.
There is no appeal process against expropriation mentioned in the draft, while the article on compensation states that: “The sum of money provided as compensation should be calculated at the market rate appropriate and just.” The draft does not define what the meaning of “appropriate and just” might be.
Dan Nicholson, coordinator for the Centre on Housing Rights and Evictions, said he couldn’t comment on the document as he had not seen it, but he said an expropriation law in Cambodia is needed. Another draft of an expropriation law was circulating among NGOs and rights groups in 2007 but nothing has been heard since, he said.
“The Constitution and the Land Law allow the government to expropriate land in the public interest, provided they pay fair and just compensation in advance. However, neither ‘pubic interest’ or ‘fair and just compensation’ is defined,” Mr Nicholson wrote in an e-mail.
“There is a desperate need for a legal framework for expropriation of land and relocation and or compensation of communities where it is genuinely necessary,” he said.
Am Sokha, a lawyer and coordinator of the land and natural resources program for the free legal aid organization Community Legal Education Center, and who read the draft on Monday, said the document failed to protect the rights of the people and that there was no mention of an appeals process.
There is a need for a separate law of expropriation because the Land Law from 2001 is not detailed enough, he added.
“The purpose of an expropriation law is good but the procedure of the draft law is bad and confusing,” he said of the document he reviewed.
“Some paragraphs don’t comply with the Constitution…and there are conflicts between paragraphs,” he said, referring to the chapter about compensation where paragraph 22 states owners should be paid “fair and just” compensation before the expropriation is complete while another paragraph says only part of the compensation has to be paid in advance.
“If the government wants to take land for the public good they can do that, the people don’t have a choice. It doesn’t protect the people affected,” he said, because the draft law doesn’t mention an appeals process.
The draft also fails to specify property owners’ rights to compensation in case of an emergency expropriation. It states that an emergency expropriation could occur in case of wildfire, war, flood or other disasters but it does not say how or if compensation should be paid in such circumstances, he said.
Heng Vong Bunchhat, vice chairman of the Council of Minister’s council of jurists, said Thursday he was aware that an expropriation law is being drafted but he said he didn’t have any details. However, he said, Cambodia is in great need of an expropriation law to prevent “anarchy” in land issues.
The government is currently using the 2001 Land Law to rule on expropriation cases, he said.
“We have the Land Law, which is general and we must have another law to talk in details [about expropriation]. Any country has an expropriation [law] and the conditions are strict,” Mr Bunchhat said, adding that he wouldn’t be surprised if there were critics of the new law.
“When the law is created there are beneficiaries and losers. But we are building the state, we don’t need to be busy with small issues,” he said.
Amnesty International researcher Brittis Edman, said she had heard a law was underway but that she had not seen a draft.
Amnesty reported 27 cases of forced evictions affecting some 23,000 people in 2008 and has repeatedly called on the government to legislate against forced evictions, she said. Amnesty also estimates that at least 150,000 people are living under the threat of forced eviction due to land disputes, land grabbing and development projects-about 70,000 of these people live in Phnom Penh.
“Cambodia also needs eviction guidelines so that any evictions that need to take place – as a last resort – are undertaken in a way that upholds the human rights of those affected,” Ms Edman wrote in an e-mail.
But, she added, a law on expropriation drafted without input from civil society seemed to overlook both the lack of protection against forced evictions and the need for national eviction guidelines.
On May 6, the UN Special Rapporteur on adequate housing rights, Raquel Rolnik, released a statement raising concerns over the government’s treatment of residents in Phnom Penh’s Group 78 community. Mrs Rolnik criticized the government for ignoring due process and for refusing to officially recognize ownership claims of eviction threatened communities. Earlier this week the UN Committee on Economic, Social and Cultural Rights joined Mrs Rolnik in calling for a moratorium on evictions.
Earlier this year, on January 28, the UN Office of the High Commissioner for Human Rights released a statement condemning the violent evictions of residents of the Dey Krahorm community on Jan 24 calling it the “latest in a far too long series of violent evictions in the capital.”
Despite that many families meet the criteria for possession rights under the 2001 Land Law, the government has denied them proper land titles leaving property rights in a limbo and communities exposed to arbitrary decisions and abuse, the UN said.