Phnom Penh , 24 December, 2009
PRESS STATEMENT
TIME HAS NOT COME FOR LAW ON EXPROPRIATION IN CAMBODIA
TIME HAS NOT COME FOR LAW ON EXPROPRIATION IN CAMBODIA
The Sam Rainsy Party strongly believes that the draft Law on Expropriation proposed by the government and to be soon debated at the National Assembly but will not resolve the serious conflicts resulted from land disputes. Many Cambodians are victims of land grabs, forced evictions and other unlawful forms of land encroachment by powerful officials and companies who have total control of an already corrupt administration and an incompetent court system. The serious abuse of the 2001 Land Law has victimized the poor and the powerless in the most unjust way, causing severe physical and mental pain.
The Sam Rainsy Party judges that the government should first put all efforts to strengthen state institutions such as local administration, ministries in charge of land management and the judiciary in order to enhance their capacity and to fulfill their responsibility such as the issuance of land titles to all citizens who are entitled to land ownership. Furthermore, the government should take all measures to put in place mechanisms for an efficient implementation of land management and development programs in accordance to the existing Land Law before pushing for more legislation on land management.
The Sam Rainsy Party takes notice of weaknesses and missing provisions in the proposed draft Law on Expropriation. 14 points are raised by NGOs and the civil society which can give way to unjust and unfair expropriation of people's land and properties by powerful officials and companies under the name of "development" to serve their personal and group interests.
The Sam Rainsy therefore will not support the draft Law on Expropriation so long as the government does not demonstrate its political will to protect the people's rights to housing and to land and so long as the proposed draft does not take into consideration recommendations put forward by NGOs and the civil society.
For more details, please see attached document below:
The Sam Rainsy Party is deeply concerned by the government's draft LAW on Expropriation to be debated in Parliament on 24 December, 2009 for the following reasons:
1. Widespread Forced Evictions, Land Grabs and Excessive Land Concessions : the proposed draft law comes at a time when more than 25% of farmers are victims of land grabs and 150,000 families are living under eviction threats and 11% of urban poor have been forced out of their land and homes in the most inhumane way. Forced evictions and land illegal confiscations are among the most serious human rights violations cited by Human Rights Watch and human rights NGOs as Cambodia went for a review by the UN Human Rights Council early this month;
2. Failings in Land Registration : the proposed draft law comes soon after the World Bank cancelled its US$24.3 million Land Management and Administration Project(LMAP) citing lack of transparency and corruption as reasons for cancellation. Only 1.2 million out of 3 million land titles have been issued to Cambodians entitled to land ownership.
3. Lack of Rule of Law, Weak Governance and Corruption in the Legal System : an inefficient administrative and judicial system and corruption leave victims of land grabs and forced evictions with no fair compensation and no hope for justice.
The SRP strongly appeals to the government to mount its efforts to improve the land management and administration system to speed up land registration and secure land ownership through a full implementation of the 2001 Land Law.
The SRP calls on the government to review the draft Law on Expropriation and to adhere to the principles of the Constitution and the 2001 Land Law in order to provide full protection to citizens whose property and land will become subject of seizure once the Law on Expropriation is adopted.
The SRP recommends the following :
Under the Draft Law on Expropriations, Art. 4 stipulates:
"Expropriation refers to confiscation of, with fair and just compensation in advance, private property or seize of real right to property of a physical person or legal entity and legal public entity, which include land, building, and cultivated plants for construction, rehabilitation, and expansion of public physical infrastructure which is for national and public interests."
There are three major areas of concern once the law is passed:
1. Definition of “Public interest/use/purpose”: under the proposed draft, the unclear definition of public and national interests is real ground for arbitrary expropriation by powerful persons or companies with support from the government to make use of the proposed law.
The SRP is concerned by the lack of specific articles that ensure transparency and the people's right to participate prior, during and after expropriation. An open process included in the Draft Law will be a guaranty for the protection of the rights of those land owners who are faced with expropriation.
The goals of development projects should maximize the social welfare of those who have the least opportunities and should be for the greatest number of people and without bias.
2. Valuation of Expropriated Property or Fair and Just Compensation: Ch. 4, Sec. 3, Arts. 22-29
"Financial compensation given to the property's owner and/or rightful owner shall be with the market price or replacement price on the date of declaration of the expropriation". The market price or the replacement price shall be determined by an independent committee or agent selected by the Expropriation Committee
Past and current gross violations of the 2001 Land Law bring serious concern on the composition of the "independent committee or agent selected by the Expropriation Committee".
The SRP recommends the inclusion of all land owners faced with expropriation and representatives of civil society in the evaluation committee. There should be more than one agent selected by the Expropriation Committee.
The draft law should include measures to provide both compensation for rights in land and compensation for other economic losses caused by the taking (removal of building, moving expenses, business income loss, etc.).
The draft law should provide a "Land-for-land option other than cash compensation as it is more likely to preserve existing lifestyles and communities. The "land for land" option should be offered with a choice for cash compensation based on the fair market standard, or the replacement land of comparable quantity and quality. The law should ensure that agreement and negotiations are conducted through non-compulsory negotiations between the Expropriation Committee and affected farmers until both parties reach an agreement on compensation.
3. Due Process
The Draft Law provides for Consultation (Ch. 4, Sec. 1, Art. 16); Notice (Art. 17); and Legal Remedies (Art. 18)
The SRP recommends a strengthening of due process with provisions in the Draft Law for individual to file a complaint with the Expropriation Committee to challenge an expropriation on grounds that: a) expropriation procedures are being carried out improperly; b) the expropriation is not for public or national interest; or c) the compensation is not fair and just.
The SRP is seriously concerned with Art. 19 which stipulate that expropriation can still be executed even though the resolution of the dispute has not been completed.
This raises concerns that compensation could be delayed until after the expropriation is completed, and that deprivation occurring in violation of the Constitution could still be effectuated and displace the rightful owners for years before any review is done by the Expropriation and Conflict Resolution committees or a court. Post-deprivation process is inadequate unless it provides additional payment of money damages in the case that the expropriation was found to be wrongful.
Sam Rainsy Party
Contact: Yim Sovan, MP : 012 788 999
The Sam Rainsy Party judges that the government should first put all efforts to strengthen state institutions such as local administration, ministries in charge of land management and the judiciary in order to enhance their capacity and to fulfill their responsibility such as the issuance of land titles to all citizens who are entitled to land ownership. Furthermore, the government should take all measures to put in place mechanisms for an efficient implementation of land management and development programs in accordance to the existing Land Law before pushing for more legislation on land management.
The Sam Rainsy Party takes notice of weaknesses and missing provisions in the proposed draft Law on Expropriation. 14 points are raised by NGOs and the civil society which can give way to unjust and unfair expropriation of people's land and properties by powerful officials and companies under the name of "development" to serve their personal and group interests.
The Sam Rainsy therefore will not support the draft Law on Expropriation so long as the government does not demonstrate its political will to protect the people's rights to housing and to land and so long as the proposed draft does not take into consideration recommendations put forward by NGOs and the civil society.
For more details, please see attached document below:
----------
Draft Law on Expropriation - Protection for the Rich, Greatest Fear of the Poor
Draft Law on Expropriation - Protection for the Rich, Greatest Fear of the Poor
The Sam Rainsy Party is deeply concerned by the government's draft LAW on Expropriation to be debated in Parliament on 24 December, 2009 for the following reasons:
1. Widespread Forced Evictions, Land Grabs and Excessive Land Concessions : the proposed draft law comes at a time when more than 25% of farmers are victims of land grabs and 150,000 families are living under eviction threats and 11% of urban poor have been forced out of their land and homes in the most inhumane way. Forced evictions and land illegal confiscations are among the most serious human rights violations cited by Human Rights Watch and human rights NGOs as Cambodia went for a review by the UN Human Rights Council early this month;
2. Failings in Land Registration : the proposed draft law comes soon after the World Bank cancelled its US$24.3 million Land Management and Administration Project(LMAP) citing lack of transparency and corruption as reasons for cancellation. Only 1.2 million out of 3 million land titles have been issued to Cambodians entitled to land ownership.
3. Lack of Rule of Law, Weak Governance and Corruption in the Legal System : an inefficient administrative and judicial system and corruption leave victims of land grabs and forced evictions with no fair compensation and no hope for justice.
The SRP strongly appeals to the government to mount its efforts to improve the land management and administration system to speed up land registration and secure land ownership through a full implementation of the 2001 Land Law.
The SRP calls on the government to review the draft Law on Expropriation and to adhere to the principles of the Constitution and the 2001 Land Law in order to provide full protection to citizens whose property and land will become subject of seizure once the Law on Expropriation is adopted.
The SRP recommends the following :
Under the Draft Law on Expropriations, Art. 4 stipulates:
"Expropriation refers to confiscation of, with fair and just compensation in advance, private property or seize of real right to property of a physical person or legal entity and legal public entity, which include land, building, and cultivated plants for construction, rehabilitation, and expansion of public physical infrastructure which is for national and public interests."
There are three major areas of concern once the law is passed:
1. Definition of “Public interest/use/purpose”: under the proposed draft, the unclear definition of public and national interests is real ground for arbitrary expropriation by powerful persons or companies with support from the government to make use of the proposed law.
The SRP is concerned by the lack of specific articles that ensure transparency and the people's right to participate prior, during and after expropriation. An open process included in the Draft Law will be a guaranty for the protection of the rights of those land owners who are faced with expropriation.
The goals of development projects should maximize the social welfare of those who have the least opportunities and should be for the greatest number of people and without bias.
2. Valuation of Expropriated Property or Fair and Just Compensation: Ch. 4, Sec. 3, Arts. 22-29
"Financial compensation given to the property's owner and/or rightful owner shall be with the market price or replacement price on the date of declaration of the expropriation". The market price or the replacement price shall be determined by an independent committee or agent selected by the Expropriation Committee
Past and current gross violations of the 2001 Land Law bring serious concern on the composition of the "independent committee or agent selected by the Expropriation Committee".
The SRP recommends the inclusion of all land owners faced with expropriation and representatives of civil society in the evaluation committee. There should be more than one agent selected by the Expropriation Committee.
The draft law should include measures to provide both compensation for rights in land and compensation for other economic losses caused by the taking (removal of building, moving expenses, business income loss, etc.).
The draft law should provide a "Land-for-land option other than cash compensation as it is more likely to preserve existing lifestyles and communities. The "land for land" option should be offered with a choice for cash compensation based on the fair market standard, or the replacement land of comparable quantity and quality. The law should ensure that agreement and negotiations are conducted through non-compulsory negotiations between the Expropriation Committee and affected farmers until both parties reach an agreement on compensation.
3. Due Process
The Draft Law provides for Consultation (Ch. 4, Sec. 1, Art. 16); Notice (Art. 17); and Legal Remedies (Art. 18)
The SRP recommends a strengthening of due process with provisions in the Draft Law for individual to file a complaint with the Expropriation Committee to challenge an expropriation on grounds that: a) expropriation procedures are being carried out improperly; b) the expropriation is not for public or national interest; or c) the compensation is not fair and just.
The SRP is seriously concerned with Art. 19 which stipulate that expropriation can still be executed even though the resolution of the dispute has not been completed.
This raises concerns that compensation could be delayed until after the expropriation is completed, and that deprivation occurring in violation of the Constitution could still be effectuated and displace the rightful owners for years before any review is done by the Expropriation and Conflict Resolution committees or a court. Post-deprivation process is inadequate unless it provides additional payment of money damages in the case that the expropriation was found to be wrongful.
Sam Rainsy Party
Contact: Yim Sovan, MP : 012 788 999
