Friday, 2 May 2008

Cambodia: Durable solution to land grabbing lies with the due process of law

(Ch. Narendra)

Land grabbing has been plaguing Cambodia for many years. In early March 2007, a month prior to the commune election, Prime Minister Hun Sen loudly announced a "war against land grabbers", and almost immediately after this announcement several land grabbers were arrested or forced to give up the land they had grabbed.

This war lost almost all its thrust after the election was over and Hun Sen’s ruling party had secured the control of the overwhelming majority of communes across the country.

Hun Sen has not hinted at his war ever since although land grabbing has continued to gain ground, claiming no fewer victims than prior to its announcement. As the next general election, to be held in July of this year, is approaching, Hun Sen has became active again and taken a flurry of decisions in succession to address the issue.

On 24 March he went in person 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 fence around the land, which led to protest by the victims. He then announced that he took the land from Thai Bun Rong company 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, 25 March, 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 weak” or they would be sacked.

In the same address he criticized the National Authority for the Resolution of Land Disputes (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 Ministry to avoid the issuing of such multiple titles. He threatened to send NARLD officials to jail if found to be dishonest.

Despite its name, 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 MP, from the opposition party, who has recently resigned from it, NARLD has no power. It is more like a coordinating body entrusted with the tasks of receiving complaints and conducting investigation with the cooperation of relevant authorities. It mostly entrusts the task of settling the disputes to these authorities.

The creation of 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 24 March, 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.”

On 23 April, Hun Sen displayed in public his anger with the rulings of two courts of first instance. The first one was the court of Banteay Meanchey province which ruled in favour of a company in its dispute with the government over its construction on public land. The second was the court of Kandal province which ignored his “notification” to return a disputed land to its occupants and the findings of an investigation by the provincial authorities, when it ruled in favour of a company which had claimed to have bought the land from those occupants.

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. When made in the approach of the general election, it very much has an electioneering character.

However, these measures, however pleasing to their beneficiaries, are simply momentary political expediencies, not a durable solution to the many cases of land disputes Hun Sen himself has received, let alone the thousands more that NARLD has received and continues to receive.

Nor is NARLD of much help to resolve those disputes “out of the justice system”. Its “sluggishness”, as Hun Sen has acknowledged and criticized, shows it is also a political expediency, ineffective in resolving those disputes.

A durable solution lies with the institutions for the rule of law, that is, the courts of law and the cadastral commissions. These two institutions have respectively constitutional and legal jurisdictions 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, all this does not address the problem of corruption in courts.

It only undermines their role and further destroys further public confidence in them. It also further compels victims of land grabbing to resort, as they have been doing so far, to Hun Sen to find justice for them and get their land back, and will then create so overwhelming a problem for him to address.

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.

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