Losing Ground - Human Rights Party.

Losing Ground
or interest (e.g. roads and gardens, public schools and
hospitals), or areas of archaeological or heritage value.
These cannot be owned or possessed by anyone except the
State. 15
State Private land is “all the land that is neither state
public land, nor legally privately or collectively owned
or possessed under the Land Law of 2001.” 16 Unlike State
Public property, “private property of the state… may be
subject of sale, exchange, distribution or transfer of rights as
it is determined by law.” 17
The “State land” problem
Possession, as already mentioned, must have commenced
before the 2001 Land Law was passed and must meet the
five conditions in order to be legal. The only other limitation
on this is that no possession is legal on State Public property.
As can be seen in the Land Law and Sub-decree on State
Land Management, legally possessed land (that is pre-2001
and meeting the five conditions) is no longer State property,
and is in fact private property.
Land Law 2001, Article 12:
“The State is the owner of the properties in the territory
of the Kingdom of Cambodia enumerated in Article 58 of
the 1993 Constitution and of all properties that are escheat,
or that are voluntarily given to the State by their owners,
or that have not been the subject of due and proper private
appropriation or that are not presently being privately
occupied in accordance with the provisions of
Chapter 4 of this law.” (Emphasis added. Chapter 4 of
the Land Law refers to legal possession. This clearly sets out
that the State is not the owner of legally possessed land.)
Sub-decree on State Land Management, Article 5:
“Private State land is all the land that is neither state
public land, nor legally privately or collectively owned or
possessed under the Land Law of 2001. Private land
of the state includes land that is escheat or land voluntarily
given to the State by the owner or land with no identifiable
legal possessor or owner.” (Emphasis added.)
Unfortunately, there is no coordinated identification,
mapping and registration of State land. As yet there is no clear
delineation of what is State Public land. In practice, observers
see that people are denied recognition of their possessory
rights (and therefore denied access to land title) because
they live on “State land.” The government rarely distinguishes
between the two types of State land. As explained above,
the only grounds for denying the legal possession rights of
the occupier would be if the land was State Public. This is
unverifiable as there is no public information on what is and
what is not State public property.
Without any publicly available records of what is State
public property, as required by the Sub-decree on State Land
Management, it is almost impossible to dispute government
statements that a community is living illegally on State land.
Thousands of Cambodian citizens therefore face a serious
barrier to proper recognition of their legal possession and
the rights that come with it.
Possession without occupation or use
One condition of legal possession is that it must be
continuous. This does not mean owners must physically live
on or even use the land 100 percent of the time. They must,
however, use the land in the natural way that one would be
expected to use that type of land. 18 If someone leaves paddy
field untouched during the peak of the dry season, or leaves
agricultural land fallow for a period, it does not preclude legal
possession. The idea behind the requirement for continuity
of possession was to guard against land speculation.
However, there have been many cases, especially in rural
areas, of individuals coming forward and claiming land,
presenting old documentation indicating possession. This is
often not legal possession for several reasons. Moreover, the
legality of these documents is often questionable.
People living in that area have oftentimes never even seen
the people with the possession certificates – meaning that
the outsider's possession of the land cannot possibly be
continuous, as leaving land empty for years on end is not
a use in line with natural use of the land. Their possession
is also not notorious to the public and is not clear. Article
38 of the Land Law explicitly states that a possessor cannot
“hid[e] himself”.
In this way, many old certificates of possession exist
(perhaps from prior to the 2001 Land Law) but are now
legally invalid and should have no legal standing. Many were
issued without proper process and others have become
invalid as the possessor of the certificate has failed to meet
the five conditions set out in the Land Law.
15
Land Law 2001, Article 16.
16
Sub-decree No 118 on State Land Management 2005, Article 5
17
Land Law 2001, Article 17.
18
Land Law 2001, Article 38.
Forced Evictions and Intimidation in Cambodia
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