Legal expert Heng Vong Bunchhat says he didn’t want to create a revolution with Cambodia’s draft land law.
After rejecting an earlier draft as inadequate, he and co-author Claude Gour kept the massive piece of new legislation deliberately broad, perhaps in recognition of the government’s task of sifting through land ownership issues in a country where ownership has been redefined during several successive regimes.
“My role…was to ensure the transition [from state property] to private property while protecting the defenseless,” said Heng Vong Bunchhat, who also vice chairs the Council of Jurists.
But to even tackle the issue is revolutionary, according to Janet King, the in-country director for the University of San Francisco’s Cambodia Law and Democracy Project.
Implementing the draft’s 277 articles will involve changing land use practices that go back a millennium, she said. For centuries, a farmer owned the land he plowed, and could move on to another field when his old land ceased to be fertile.
“Culturally, the [traditional] idea of ownership is very different from the concept we’re trying to put in place in a free market economy,” King said.
Added to that is Cambodia’s recent history of millions of displaced people, which left a near-constant stream of refugees settling on whatever land was available at the time, staying there for years until it became home.
But countless families in recent years, including indigenous peoples, have lost even those small parcels of property to speculators, government officials or military personnel seeking to reap thousands—sometimes even millions of dollars—from property deals.
The growing crisis of landlessness, which the international community has called one of the country’s leading problems, perhaps forced the revolution Heng Vong Bunchhat has downplayed.
His draft law could become the blueprint that will completely restructure the way property is divided, given away, traded and registered—attempting to bring order to a system that brought chaos and corruption, benefiting wealth and power at the cost of fairness and national good.
“This is a generational shift,” King said, suggesting a near total break from the norm, indeed a break from generations of land management.
But the homeless will not disappear immediately, observers say. While optimists hope land reform will be complete in Cambodia within a decade, some say several decades of gradual change as a more realistic time frame. But all agree land reform will—and should—take time.
“It’s a very, very complex issue,” King said. “I’m not going to see the results in my lifetime…but it’s worth it.”
The National Assembly’s Commission on Education, Religious Affairs, Culture, Tourism and Land Management is nearly finished with its revisions to the draft, a commission member said Monday, though the draft has yet to be put on the lawmaker’s agenda, despite assurances it would be complete before the donor meeting which opened in Tokyo on Tuesday.
The draft aims to address several areas that were either poorly legislated or ignored in previous laws.
Hill tribes—frequently victims of land grabbing—will be collectively given the right to own land for the first time, Heng Vong Bunchhat said. The draft specifies they will be allowed to grow crops on their land using their traditional farming methods, and that no person from outside their community will be allowed property titles on their land.
Under the new legislation, foreigners might also be allowed to own buildings—though still not land—on Cambodian soil. The Cambodian Constitution currently forbids anyone other than Cambodian nationals from owning property.
The draft lists the Ministry of Land Management, Urban Planning and Construction as the body responsible for administering and managing land titles throughout Cambodia.
Surveying for the estimated 8 million land titles existing in Cambodia will take about 15 years, according to Willi Zimmermann, a team leader for the German Agency for Technical Cooperation—part of the German aid program in Cambodia.
“But that’s a normal procedure—nothing special,” he said. Finland and Germany have already funded pilot projects to develop a method to survey properties and issue land titles. About 45,000 parcels have already been recorded in Sihanoukville, Takeo, Kandal, Kampot and Kompong Thom provinces, said Jouni Anttonen, a team leader with the Finnish-funded FINMAP.
Funding for some of the land-management work is expected to come from the World Bank.
Perhaps most important is a provision of the law known as the social concession, which turns state land—estimated at about 83 percent of Cambodia’s territory—over to the needy to farm and live on, with the eventual rights of ownership.
“In theory, it’s a beautiful thing,” said Matthew Rendall, the USF Cambodia Law and Democracy Project leader. “There would be no more landless.”
The social concession is meant to replace the ownership process that in the past has led to confusion and abuse, where a family or individual could settle on a piece of land and get a certificate of possession from local authorities. If the land remained uncontested for five years, occupants would get full ownership.
Yet the certificate did little to end land ownership disputes. Some people were unaware they had to get certificates, while others applied but confused their application receipts with the certificate itself. Still, in other cases, local authorities failed to register squatters claims or issue certificates, leaving property owners more vulnerable to land-0grabbing.
But as it stands in the draft law, the social concession lacks the necessary specifics—how are the “needy” defined? Do the thousands of urban poor living in cramped shanty towns in the cities qualify? Will demobilized soldiers be able to apply for recently opened state land?
The social concession also raises the question of relocation. Song Vannsin, a program officer for the Cambodia Land Study Project at Oxfam GB, worries that landless will be given property in distant provinces. He cited the recent relocation of squatters from the Bassac River banks to a location far outside of Phnom Penh that is inconvenient for city workers.
“Some people don’t like that because they want to live in cities,” Song Vannsin said. Oxfam GB hopes to hold a national workshop on the social concession issue in a few months.
And even with the new legislation’s aim of turning some state land over to the public, the government will still be faced with deciding who will manage land that remains under its control and how it decides to make that land available for sale.
State land is currently managed by a number of ministries to use as they see fit. By law, these properties—including roads or parcels on government facilities—can be given over to the private domain and sold once they are no longer useful to the public.
“There is a lot at stake here,” Rendall said. He cited as an example any road that turns into a highway linking Cambodia to Vietnam or Thailand. The land value may climb significantly, Rendall said, so it will matter a great deal who manages that land and what parcels can be leased or sold on each side of the roads.
Additionally, some transactions between ministry officials and a private buyer are never made public. For example, the sale of land for casinos along the Thai-Cambodian border have never been recorded and the profits not put into state coffers.
Earlier this year the Asian Development Bank complained that these practices were draining the country of much needed money. “Despite extensive holdings of state-owned immovable property…the return to the national budget for rents, lease payments and other land-use right granted by the Royal Government remains very low,” said ADB Resident Representative Urooj Malik. Taxes from private property transactions are also lower than could be expected, he said.
“This is important income for Cambodia (to get) because this is a country with a low revenue base,” said ADB Resident Representative Urooj Malik.
Once adopted, it will take at least 15 sub-decrees and a number of programs to implement the land law.
Matters of jurisdiction over state land transactions will have to be determined. “Fights for jurisdiction are government business, not jurists,” Heng Vong Bunchhat said.
But, at least, principles will have been put in place for the land reform to begin.
