Abstract/Summary

The Royal Government of Cambodia has embarked upon a reform agenda designed to promote sustainable economic and social development, poverty alleviation, and peace. As a prelude to the titling project, the government decided to first conduct a social assessment of land in order to obtain a report on the ground situation concerning, land control, conflicts, and the capacity of different authorities to effectively and efficiently govern land rights. The main objectives of this social assessment are to (1) identify the different stakeholders of land and the project, (2) examine the social and institutional capacity at the local level for governing land rights, (3) forecast possible negative impacts of the project, and (4) make relevant policy recommendations.

The study is qualitative in nature and has relied primarily on five case studies conducted in five villages, each from the Kandal, Prey Veng, Kampot, Kompong Speu, and Rattanakiri provinces, as well as one urban case study in Phnom Penh. Each of the village studies represents a different agro-ecological zone, while the Phnom Penh study focuses on squatter settlements. However, the study may not be representative of the whole country. Various qualitative methods such as small group discussions and individual interviews with farmers, migrants, demobilised soldiers, women’s groups, and local officials were used to develop these cases. The research team also interviewed personnel from the land management departments at the provincial and district levels, the provincial land dispute settlement commissions, chief judges at provincial courts, tax department officials, as well as village, commune, and district chiefs. In Phnom Penh, a daylong seminar involving municipal officials and NGOs was organised to elicit information on land issues in the city. Interviews were also held with officials in the Central Cadastral Office. All observations are based on responses from field interviews.

Cambodia privatised lands in 1989 and it is widely believed that there was a fair distribution of both agricultural and residential lands at that time. All those whose main occupation was agriculture received land according to household size. However, due to inadequate financial and human resources, a complete mapping and titling of land could not take place at that time. People therefore continued to rely on local traditions and customs to govern land rights according to the productive use of land. In the last decade, there have been significant socio-economic changes (e.g. refugee repatriation, the advent of markets and urbanisation, increased population growth) that have placed varied demands on land. As a result, the composition of stakeholders in land has emerged rather unevenly. Following the law of the market, maximum demands have been placed on commercial lands, roadside lands, productive lands, urban lands, and the like. People who have not been able to adapt to such changes have not benefited from this process, and in many cases have actually been adversely affected. These people include the most vulnerable segments of the population (e.g. the rural poor, women heads-of-households). There are at least five major problems that require attention: (1) inequality in land holdings, (2) landlessness, (3) insecure tenancy, (4) land conflicts, and (5) encroachment on urban lands by squatters.

Land use patterns have changed dramatically, particularly in locales characterised by high commercialisation. Such changes have been linked to increasing demand by more diverse groups of interests, including private companies and state institutions, as well as individuals in positions of authority, such as government officials and military personnel. The demand for land has also increased among the peasantry because of accelerated land atomisation and restrictions placed on their access to forest and fishing resources. Such changes in land use patterns have also been accompanied by a corresponding shift in people’s perceptions of land rights. Two practices of ownership and control are now rapidly emerging as more and more land is acquired by people and institutions from outside the local community for purposes other than subsistence farming. Land use rights are recognised locally by people within the peasant community according to traditions and customs, while ownership rights are recognised by people from outside the community according to the formal law and procedures laid-down by the state. More than one mode of land ownership and control is not harmonious because there is a frequent interface between the two modes in which more powerful parties are able to take advantage of those who are more vulnerable. In this sense, people routinely seek venues and employ procedures that promote their own self-interests.

Land markets are most active in areas situated along roads and near urban or market centres. In such areas, the demand for formal land claims (i.e. titling deeds) is high in order to facilitate transfers, clarify land boundaries, and avoid disputes. However, due to the high costs of land titles – mainly in the form of unofficial payments – many land transactions are routinely facilitated at the lower levels of the administration through an exchange of application receipts or written contracts between buyers and sellers, which are not necessarily tenable in law. Only people with adequate financial resources and/or political access are able and willing to obtain proper land certificates. In areas characterised by subsistence farming systems away from roads and urban/market centres, people either rely on receipts or local/community based social institutions for validating use rights to certain areas of land. However the demand for written documentation in these areas is also increasing because people wish to ensure a smooth process of succession and land transfer to their offspring.

A complex hierarchy of government officials and elected representatives governs land. An application for making certificates goes through at least 8-10 offices, spread across the village, commune, district, province and the national capital. Inquiries and land measurements take enormous time, a process also lengthened for want of proper (human and physical) resources. For one, most rural people, farmers and non-farmers alike, are not well versed with this governance system. They would prefer to avoid the system in favour of local traditions and customs and deal only with local institutions. There are, however, some people who avoid the formal system in order to avoid paying genuine taxes as well. Next, the duality of systems of land control not only co-exists, actors within the government itself, particularly at the lower levels (e.g. village and commune chiefs) are party to perpetuating it. Different stakeholders understand land titles differently, and even the guardians of the law themselves, the courts and dispute settlement mechanisms, do not have a clear and consistent understanding of the law and rules. The de facto sanction extended to different practices of governance of land has ensured that the actual law is never fully implemented. The ambiguity in rules and multiplicity of practices in land transactions has also contributed to increasing corruption, which is exacerbated by the unrealistic remuneration structure provided to government staff. In many areas, a proper certificate may cost up to US$300-400, almost all in the form of unofficial payments to officials and representatives spread across different departments. Predictably, the poor rarely, if ever, obtain the right papers because they have neither the support of the law nor the resources to by-pass the law. Women are especially vulnerable in this regard since they tend to have less access to and control over resources with which to advocate for their own rights.

The frequency and nature of land disputes is also increasing as more diverse interests compete for land resources. More land disputes now involve village people and people from outside the local peasant community, including private companies and state institutions, and increasingly require more formal institutions for resolution. Any new land titling effort will generate more demand for dispute resolution, involving both formal and traditional community-based governance mechanisms at all levels. Such an increase would, in all likelihood, overwhelm a state-machinery that is already falling behind on its caseload. The most significant constraints in terms of the capacity to handle an increased volume of cases are related to inadequate financial and human resources, including technical training in the law and procedures. At the same time, the land dispute settlement commissions and provincial courts are currently perceived by many people, particularly those in rural communities, to be inherently unfair in terms of a structural bias that favours those with more resources and access to power, while precluding the full and equal participation of disadvantaged groups (e.g. the poor, women, and indigenous people). Part of the problem regarding people’s faith in the system is related to inadequate information about and understanding of the laws and procedures governing property rights. The crisis of confidence in the dispute resolution process, as it is currently structured and practised, represents a significant problem of good governance.

Some of the principal recommendations are listed below:

Titling land by the law and sequencing of activities: Irregularities in land control should be settled in accordance with the new law before titling takes place. The same rules should apply to individuals, companies and other entities as well as government authorities. The new titling programme should also sequence the titling process. A suggestive approach is: residential land first, followed by agricultural land (rice) land, then chamkar (non-rice crop, cash crop) land, and thereafter public land such as beaches, forests, pathways, and roads. The logic of such sequencing follows the principle that the shelter and livelihoods of the poor should be the first priority.

Strengthening decentralised land governance: The law should be unambiguous and implemented at a decentralised level, with a view to ensuring that all procedures are transparent, speedy, and affordable for all people. The current system of land titling and registration should be decentralised. If possible, the district should be the terminal point of registration given its close proximity to the local level. Strengthening the capacity of local authorities and creating village/commune level committees, perhaps with NGO participation, is a necessary component of such a decentralisation exercise. In order for the titling programme to proceed, all previous transactions should be validated and upheld as long they have not impinged on the rights and interests of the weaker segments of society.

Resolving disputes: All land dispute cases should be resolved in a way that is consistent with the spirit and intent of the relevant laws governing land rights. The dispute resolution process should be decentralised so that it corresponds with the land titling process. Maximum effort should be made to settle cases with local/community-based mechanisms, including those cases that involve government authorities and companies. The authority of the village/commune leaders should be upheld to the utmost. Cases that cannot be resolved at the local level should follow clear paths of appeal. The membership of the dispute settlement committees should be non-partisan and entirely civilian. More financial and human resources, including training, must also be allocated at the local level.

Framing a new relocation and habitation policy: An effort to settle internally displaced people, landless, and urban migrants can help strengthen peace and stability as well as alleviate poverty. There are enough land resources in rural areas to meet the needs of the landless. There is also urgent need to relocate and/or regularise the present illegal settlements in Phnom Penh. A more innovative relocation and habitation policy must be put in place, which strikes a reasonable and fair balance between the needs and interests of these people and the long-term development objectives of the city.

Recognising indigenous people’s rights: A reasonable approach must be devised that protects indigenous people’s traditional access to, and control over, communal land, while meeting the broader development objectives of the state that are designed to promote better standards of living in such areas. Communal land titling procedures will require the active collaboration of both the public and private sector, including NGOs that have relevant experience in these areas.

Recognising women's rights: Special efforts must be directed at strengthening women's access to land ownership and dispute resolution. Legal codes are urgently required that ensure women's rights to a fair and equitable division of land in the event of divorce and inheritance. Women must also have some legal guarantees that ensure their access to fair and impartial dispute resolution. There is a need for active collaboration between the government and civil society organisations to provide women with information about their rights in the context of the new land law, as well as provide support to enable women to advocate for their rights.

Following best practices: There are successful titling experiences from outside and within the country, which offer lessons for the new titling programme. The government’s systematic titling programme, assisted by GTZ and the Finnish government, uses aerial mapping to produce exact pictures of demarcated land. Not only is this approach more efficient, it is cheaper as well. The project has used approaches like holding village meetings to resolve boundary disputes, in addition to other consultations. It would be useful to evaluate the extent to which this approach can be replicated on a larger scale.

Financing land titling processes: The operational budgets for all levels of the administration involved with land titling should be strengthened through inter-governmental transfers and supplemented with revenue collected from user-fees. The fees should be uniform for all people and should be published. A tax on land sales and transfers of ownership should be paid before any transaction is approved. Companies and individuals who have acquired more than five hectares of land should pay a tax based on a higher percentage of the sale value of land.

Generating data and disseminating information on land rights: The creation of a bureau of statistics to serve all ministries and departments is a useful step in strengthening the database of the economy. This bureau can also collate and reconcile data produced by different ministries, in addition to collecting its own data. People must know and understand the law and the different rules, procedures, sub-decrees and clauses that are enacted from time to time. The use of television and radio can be especially useful since these media are often found in even the most remote corners of the country.