This lesson will discuss the institutional and systemic factors affecting genuine realization of peoples’ right to land in Cambodia.

A. Faulty laws and institutions

The Cambodian government recognized that the country’s serious land grabbing situation could spark off a "peasant revolution", and therefore enacted a land law in 2001. Under this law, national, provincial and district cadastral committees were created to adjudicate disputes over unregistered land, while disputes over registered land were consigned to courts of law. The ineffectiveness of these cadastral committees however, led to the establishment—by executive decree—of the National Authority for the Resolution of Land Disputes (NARLD) in 2006. Even the NARLD has not met with any success, and in March 2007, Prime Minister Hun Sen set out to wage a "war against land grabbers," whom he has identified as being ‘party officials’ and ‘people in power’.

In May 2007, the ALRC noted in its written submission to the UN that,

This war against the powerful has yet to be won, as some 2000 complaints of land grabbing have yet to be dealt with. For the time being, this war has instead brought terror to the powerless, notably in the seaport town of Sihanoukville on the Gulf of Thailand, where, in April of this year, its governor led a well armed police force to forcibly evict 107 families from their homes and 17 hectares of land for the benefit to a tycoon senator. They demolished and destroyed their homes and other belongings with bulldozers and fire, making those families immediately destitute. A month later, on the outskirts of the same town, an army general led 200 armed men to forcibly evict persons from 120 hectares of land he claims he "legally" owns.

On May 30, 2007, Hun Sen called for a "seminar on land issues," which he admitted to be "happening every day". It is not clear whether this seminar is another battle in his war against land-grabbers or an admission of defeat in that war [ALRC, ‘The absence of the rule of law aggravating the human rights situation in the country’, May 2007, A/HRC/5/NGO/8].

The Cambodian government’s consistent rule by decree has enabled the powerful and the rich, backed by powerful officials, to use their high positions and influence to secure eviction orders and the enforcement of these orders from the state machinery, without going through due process of law and without paying fair and just compensation to evictees. This rule by decree, in the form of the National Authority for the Resolution of Land Disputes, the war against land grabbers and the seminar, can hardly replace the rule of law as a means to eradicate land grabbing, let alone protect other human rights of the Cambodian people.

More recently, on 24 March 2008, prime minister Hun Sen went to a disputed land in the seaport town of Sihanoukville on the Gulf of Thailand to meet with the 125 families whose 16 hectares of land had been taken by a company named Thai Bun Rong. While squatting among those victims, he offered them his apologies for the police action to evict them that caused injury to some and led to the arrest of three of them. He blamed the police for allowing the company to build a fence around the land, which led to a protest by the victims. He then announced that he took the land from Thai Bun Rong and returned it to those families. He also ordered the three arrested persons to be released and brought before him immediately. He offered them his apologies and also compensation for their arrest.

The next day, March 25, in his address to a meeting organized by the Ministry of Land Management, Hun Sen ordered the governor of Banteay Meanchey province and his colleagues to resolve a dispute over a 20 hectare plot of land within a week, or they would be sacked.  He also criticized the NARLD for its ‘sluggishness; in resolving land disputes and threatened to wind it up. He then noted that land grabbing had the ‘character of a hot issue’ when disputes had not been speedily resolved. He also noted that some plots of land had up to four different title deeds on each of them, and he warned the authorities to avoid the issuing of such multiple titles. He threatened to send NARLD officials to jail if found to be dishonest.

While Hun Sen’s direct intervention and show of earnestness in addressing the land grabbing issue can serve as a safety valve to release the pressure of public resentment and protests that has been building up over the years, it is ineffective in tackling the deeper issues surrounding land grabbing. Moreover, when made in the advance of the general election of July 2008, his approach has a largely electioneering character.

In fact, ordinary Cambodians are also beginning to make use of the elections as leverage to secure their land. Villagers of the Phnong indigenous minority in Mondolkiri province, frustrated by broken promises from the provincial authorities, finally said that if the authorities could not keep their promises, they would take their complaint against the grabbing of their communal land by two development companies to Phnom Penh and would not go and cast their votes at the forthcoming election. On May 23, their land was returned.

Officials of the ruling Cambodian People’s Party (CPP) have also expressed concern over the possible negative impact of land grabbing on their party during the election. On May 25, a CPP commune councilor publicly voiced his worries that villagers would not vote for his party when they lost their paddy fields to the Army Tank Unit in Kompong Speu province and faced hardships afterwards. A land grabbing case in Kampot province meanwhile, compelled the CPP provincial task force to intervene on May 26 and request Hun Sen to rescind an order giving 72 hectares of land belonging to a community of 680 families to four persons.

A durable solution for Cambodia’s land crisis rests with the country’s rule of law institutions—the courts of law and the cadastral commissions. These two institutions have respectively constitutional and legal jurisdiction over land disputes. Accusing the courts of law of being corrupt, as Hun Sen has reportedly done, taking disputes from them to be adjudicated elsewhere, as he has preferred, or being angry with court rulings, as he has been, does not address the problem of corruption in courts. It only undermines their role and further erodes public confidence in them. It also compels victims of land grabbing to resort—as they have been doing—to petitioning Hun Sen to obtain justice for them and get their land back, which will create an overwhelming problem for him to address.

In fact, one group of villagers set off on a march on May 22 from Battambang province to Phnom Penh, over a distance of 291km, to request Hun Sen to help them get their land back. They said they had no confidence in the courts or the provincial authorities, but only in their prime minister, in adjudicating land disputes in their favor. At least three other groups of villagers from three other provinces arrived in Phnom Penh in the same month to file complaints against corporations and colluding authorities at Hun Sen’s residence, and to request him to order the return of their land.

National Authority for the Resolution of Land Disputes (NARLD)

Despite its name, the NARLD is not a specialized court of justice or administrative tribunal for land disputes. It was created in early 2006 by an executive order and was composed of political appointees from different relevant government ministries. According to a former member, Eng Chhay Eang, an opposition parliamentarian, the NARLD has no power; it is more like a coordinating body entrusted with the tasks of receiving complaints and conducting investigations with the cooperation of relevant authorities. It generally entrusts the settling of disputes to these authorities.

The creation of the NARLD has undermined the jurisdictions of the cadastral commissions created under the 2001 land law for resolving disputes over unregistered land, and the courts of law for disputes over registered land. However, Hun Sen has preferred, as he put it when meeting with those 125 families in Sihanoukville on March 24, resolution of land disputes ‘outside the justice system’. In his address to the meeting of the Ministry of Land Management the next day, Hun Sen was reported to be “accusing courts of law of being corrupt.”

Court system

Hun Sen’s anger with court rulings and his arbitrary overturning of these rulings in various land grabbing cases serves to reinforce that the Cambodian court system is under executive control. Most judges are affiliated to the ruling CPP party. In late May 2007, Heng Samrin, the honorary CPP president and president of the National Assembly, was reported as saying that “nobody, including judges, are without party affiliations”, thereby making it “hard to find independent [judges]”. Senior CCP members include powerful and rich individuals involved in land grabbing; this will inevitably affect the impartiality of judges. Corruption is also rife amongst the judiciary; for some judges corruption begins when they take their magistracy entrance exams. Furthermore, nearly all nine members of the Supreme Council of the Magistracy—responsible for the nomination and discipline of judges—belong to the ruling party and are known to be corrupt.

According to the Special Representative of the Secretary-General for human rights in Cambodia,

The subordination of the prosecutors and courts to the will of the Government has resulted in much injustice in land transactions and appropriations (for details, see the 2006 report of the Special Rapporteur on adequate housing, Miloon Kothari). Forcible and illegal evictions continue unabated. The Special Rapporteur noted that, prior to or during forced evictions, threats, intimidations, and physical violence are used by local authorities and private developers, sometimes in the presence of military and police forces.

Victims are rarely able to invoke remedies, including compensation, provided in the law. Mr. Kothari noted the courts’ reluctance to assist in enforcing the law. According to testimonies he received, the investigative procedures adopted by courts to ensure the legitimacy and legality of ownership titles are insufficient. Court decisions allegedly favour those who have acquired titles illicitly, to the detriment of families who should benefit from the 2001 Land Law provisions concerning ownership rights resulting from extended land possession and occupation. Indigenous peoples have suffered greatly, as shown above, even as Cambodia voted for the recent United Nations Declaration on the Rights of Indigenous Peoples, which was adopted by the General Assembly on 13 September 2007 [Report of the Special Representative of the Secretary-General for human rights in Cambodia, 29 February 2008, A/HRC/7/42].

It is high time the Cambodian government brought all land grabbing cases back to the justice system and the cadastral commissions, depending on the status of land involved, to be resolved according to the due process of law. It should enact the long overdue anti-corruption law and urge the Supreme Council of the Magistracy, the supreme judicial body responsible for the nomination and discipline of judges, to stamp out corruption in courts and win public confidence in them. It should also provide both the courts of law and the cadastral commissions with adequate resources to do their work, and respect their rulings. If the government or anybody else is not happy with any ruling, it should appeal it at a higher court.

Questions For Discussion

1. Discuss the role of the courts in safeguarding land and other human rights. What is the situation of the judiciary in your country?
2. Discuss the relationship between a country’s courts and its rule of law situation. How is this related to land grabbing in Cambodia?