For more than five years, donors have been urging Cambodia to pass a law governing how the country looks after its forests.
Until recently, the forestry draft law has been stuck in a political wilderness, emerging in draft after draft—none of which met with approval from donors.
The process got a kick-start last January when Prime Minister Hun Sen, questioned at a bi-annual meeting with donors about the status of the law, ordered the Cabinet to finalize a draft ahead of a deadline established by the World Bank.
Within days, a new draft is slated to go before the Council of Ministers for final approval before being passed to the National Assembly. It will be up to the Council to iron out the major point of contention—who gets to enforce the law, officials said.
Under the draft, the Ministry of Agriculture’s Department of Forestry is charged with enforcing the law. In protected areas, which cover about 20 percent of the country and are now under the Ministry of Environment, the two ministries would work in concert.
The Forestry Department, however, takes the lead. Only forestry officials are entitled to file a report against an offender with the court prosecutor, and perhaps more importantly, only forestry officials can impose fines.
“We cannot have two authorities to do one job,” said Ouk Syphan, deputy director of the Forestry Department, who joined in interministerial meetings Monday and Friday to discuss the draft.
But Minister of Environment Mok Mareth disagreed.
The definition of “forest” in the law is so broad it could be read to include even private property where trees are growing.
“It seems that the Ministry of Agriculture controls everything, even my house….
“I’m not opposing the process,” he hastened to add, saying that the progress made at the interministerial meeting was “remarkable.” “But I want the protected areas to be controlled by my ministry.”
Patrick Lyng, chief technical adviser to the Forestry Department’s enforcement arm, the Forest Crimes Monitoring Unit, agreed.
The Ministry of Environment “should have the ability to carry it all the way through. They’re the ones doing all the work. Why shouldn’t they be able to carry it through the system?” Lyng said.
Other ministries want to get in on the act, too, Ouk Syphan said. The Ministry of Industry argued that responsibility for issuing licenses for forest industries, such as sawmills, should come under its jurisdiction.
The Ministry of Finance objected to the proposed method of handling fines. Under the draft law, the Finance Ministry and the Forestry Department take a 50-50 split, with half going to the treasury and half going toward a fund to pay performance bonuses to forestry officials.
The Finance Ministry wants to take all the revenue and pay the Forestry Department its share later. But the Ministry of Agriculture officials want their cut first.
“It may take a very long time, sometimes two years, to get the money back,” said Chan Sarun, an undersecretary of state for the Agriculture Ministry who presided over the interministerial meeting. A long delay would remove the incentive of performance bonuses, he said.
But generally the relevant ministries are in favor of the draft, Chan Sarun said.
Todd Sigata, a US lawyer who worked on the draft with a grant from the World Bank, called it “one of the best laws in Southeast Asia.” It has more chance of being effective than previous drafts because it takes into account existing laws, such as the new land law. It also takes pains to ensure the rights of local communities to use the forest where they have a hereditary claim.
The World Bank, which has taken the lead pressuring the government to move on the law, did not return phone calls this week. NGOs said they are generally enthusiastic about the draft, although they declined to go on the record about it before it is officially released to the public.
“What we decided as a group is that we won’t comment until it goes before the Council of Ministers,” said Bruce McKenney of the World Wildlife Fund.
The draft includes substantially stiffer penalties for forest crimes than previous versions. Violators face up to 10 years in prison and fines of up to $25,000. They also face confiscation of all evidence connected with the crime, which can include equipment such as sawmills and vehicles, as well as the illegal goods, such as the logs themselves.
Previously, government officials had argued that some offenders should be allowed to pay a fine and have their confiscated equipment returned, Sigata said. They argued the provision would be an incentive for suspects to turn up in court.
Last year, GAT logging company was able to do just that, to the chagrin of environment NGOs. The company was found guilty of harvesting logs illegally, but were allowed to have the logs back after paying a fine. The fine was equal to the amount of royalties they would have paid if they had been cut legally.
To avoid a repeat of that kind of case, a clause in the draft allowing evidence to be returned after payment of a fine has been removed, Sigata said.
