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Land of Their Own [2005] ADBLPRes 11 (1 May 2005)

Land of Their Own

ADB Review [ May 2005 ]

Implementing land law in Cambodia has faced many challenges, the greatest of which has been the lack of landownership records

By Patricia Baars,
Project Consultant

Many challenges faced Cambodia’s Ministry of Land Management, Urban Planning and Construction when the country’s new land law took effect in August 2001.

An Asian Development Bank (ADB) grant had helped the ministry prepare the land law, but as is standard Cambodian legal practice, laws primarily consist of general principles that lack sufficient detail for application. Subdecrees and implementing regulations are required to effectively implement these general principles.

Cambodia’s land law secured landownership rights of citizens by allowing them to register the land they legally occupied before promulgation of the law. It called for the systematic registration of titles for all land in Cambodia, and established a special cadastral commission to resolve land disputes before the land was registered. It prohibited new occupation of land after the law took effect, and created social concessions as a means of orderly distribution of land to the poor. It also called for reforms in granting economic concessions to private investors.

Implementation of such a law is difficult in a country where historical land records have been destroyed, and only about 600,000 parcels of land have been registered under post-1989 laws between 1989 and 2001, and where everyone—from land surveyors to judges and citizens—needs to be trained to carry out their responsibilities under the new law.

ADB’s grant helps put the general principles of the land law into practice and required drafting subdecrees, consulting with stakeholders—including government officials, nongovernment organizations (NGOs), and small landholders—and training a range of people in implementing the subdecrees.

ADB’s technical assistance (TA), Implementation of Land Legislation-Phase One (a $600,000 endeavor), had three interlocking objectives: drafting regulatory texts to implement the new law, building capacity of government staff and members of the judiciary, and increasing public awareness and legal assistance for the poor.

Central to the Government’s implementation efforts has been the multidonor Land Management and Administration Project (LMAP)—funded by the World Bank, Government of Germany (through Deutsche Gesellschaft für Technische Zusammenarbeit), and Government of Finland (through Finnmap Cambodia)— which was not fully implemented when ADB’s land legislation TA began in July 2001.

While the Government, through the LMAP, was involved in systematically surveying, demarcating, and registering individual land parcels, ADB’s TA focused on making citizens aware of their rights under the law.

The systematic registration of land will take up to 15 years or more. Citizens must collect all the information regarding the land so that when their land is registered, they can prove lawful possession of it on the effective date of the law, and to protect and preserve their rights in the meantime.

This was the message of the first of two educational videos developed under the grant in collaboration with a local NGO. The videos and picture books (relating to scenarios in the videos) have been made available in provincial and district government offices, and to development and legal NGOs. The first legislative draft using ADB’s grant has developed a subdecree to establish the Cadastral Commission and procedures for investigating and conciliating disputes over unregistered land. Developed by the ministry through the interministerial Council for Land Policy (CLP), this subdecree established the model for participatory rule making that has now—for the first time in the Cambodian regulatory process—become standard operating procedure for the government and CLP.

In this model, ADB’s grant-funded legislative drafting experts helped develop a proposal, which CLP presented for discussion in public forums. The proposal was subsequently revised and disseminated widely for public comment before it was approved by CLP and presented to the Government.

This model has been expanded and used for other subdecrees on social land concessions for distribution of land to poor people, for state land management, and for reforming economic land concessions to investors.

In these subsequent cases, public consultation forums have expanded to include regional workshops, where provincial and local officials and local NGOs participate. Not only have these forums provided important input from provincial and local levels, but they have also provided important opportunities for public awareness about the new subdecrees.

Another major undertaking has been setting up cadastral commissions and training members in all of Cambodia’s 24 provinces and more than 250 districts. One of the first steps under the TA was to develop and implement regulations for a culturally relevant conciliation system.

The cadastral commission procedures build on traditional Cambodian values for conciliation of disputes, with provisions to ensure the openness, transparency, and accountability of proceedings.

In the beginning, a core group of 12 trainers were trained, and they, in turn, helped train 49 trainers, who in teams, trained others at the district level: more than 600 of the cadastral commissions’ members and staff were trained throughout the country.

In the last quarter of 2004, and as part of phase two of the TA, refresher training—based on actual cases from various district cadastral commissions—was provided in a series of six regional workshops for staff of all provincial and district cadastral commissions.

Assistance in Proceedings

One important aspect of the land dispute conciliation procedure is the right of a party to choose a person who will assist in proceedings before cadastral commissions.

This right recognizes that, while cadastral commission proceedings are conciliatory rather than adversarial, poor people may be fearful of the proceedings and may need help in completing forms and have matters during the proceeding explained to them.

To address this, the TA developed a program to train workers from development NGOs as party assistants since development workers are more likely to hear about land disputes before they reach a cadastral commission.

The training incorporated ADB-funded educational videos and picture books as training materials, and used the core cadastral commission trainers as resource people. Since most of these NGO workers do not have legal training, they rely on the videos and picture books to help explain the law to disputing parties, and know how to seek help from trainers in their region.

From the time the land law took effect, the ministry has been involved in an aggressive campaign to train all its officials and those from other ministries, especially at the provincial and district levels.

While LMAP has focused on training for government officials, the TA focused on training for legal professionals. This is especially important since most practicing judges and lawyers completed their legal training before implementation of the land law and before its title registration system took effect.

Working in collaboration with the ministry, the TA provided land law training for the first class of 55 new judges at the new Royal School for Judges and Prosecutors. In addition, a seminar was held for sitting judges, which was also attended by lawyers from the newly created Bar Training Center faculty of the Royal University of Law and Economics, and faculty and students from the Royal School for Administration.

One of the difficulties in teaching land law—and other legal subjects—is the lack of comprehensive textbooks in the Khmer language that use Cambodian law. The TA developed a 260-page land law textbook that teaches basic land and property law issues, with an emphasis on analyzing these issues.

The Cambodian Government has made significant progress in implementing the land law. In September 2003, ADB approved Implementation of Land Legislation-Phase Two (a $600,000 TA) to continue and build on activities carried out in the initial phase. Phase Two is due for completion in January 2006.