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Cablegate: Expropriation Law Passage Reveals Flaws in The

VZCZCXRO5382
RR RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0017/01 0120426
ZNR UUUUU ZZH
R 120426Z JAN 10
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC 1539
INFO RUCNASE/ASEAN MEMBER COLLECTIVE

UNCLAS SECTION 01 OF 03 PHNOM PENH 000017

SENSITIVE
SIPDIS

STATE FOR EAP/MLS, DRL
USAID FOR ASIA BUREAU

E.O. 12958: N/A
TAGS: PGOV PHUM EAGR SENV KDEM ECON CB
SUBJECT: EXPROPRIATION LAW PASSAGE REVEALS FLAWS IN THE
PARLIAMENTARY PROCESS

REF: A) 09 PHNOM PENH 654, B) 09 PHNOM PENH 962

SENSITIVE BUT UNCLASSIFIED

1. (SBU) SUMMARY. On December 29, the National Assembly (NA)
approved a new draft expropriation law, which has raised concerns
with its wide definition of "public interest" projects that justify
confiscation of private property and vague provisions on "fair and
just" compensation. There was limited public consultation during
the drafting process, and human rights NGOs and land-sector donors
missed a narrow opportunity to provide substantive input into the
law. During NA debate, Sam Rainsy Party (SRP) parliamentarians
challenged specific articles in the law and questioned its timing,
given that the majority of Cambodian land owners still lack hard
titles. Cambodian People's Party (CPP) lawmakers, however,
displayed little interest in debating or changing the law, and it
passed without amendments in a vote along party lines. As a result,
this process will reinforce criticisms that the legislature is
essentially a rubber stamp for the executive. END SUMMARY.

DRAFT EXPROPRIATION LAW REACHES NATIONAL ASSEMBLY
--------------------------------------------- ----

2. (SBU) On October 9, the Council of Ministers (CoM) passed a draft
Law on Expropriation to the NA for debate and approval. Developed
by the Ministry of Economy and Finance (MoEF) and based on French
expropriation statutes, the new law aims to define the principles
and procedures for confiscation of and compensation for private land
to make way for infrastructure construction, rehabilitation, or
expansion projects deemed to be in the "public and national
interest". The MoEF plans to draft sub-decrees detailing the
expropriation complaint procedure, the membership and structure of a
new MoEF-led Expropriation Committee, and the process for
compensation.

3. (SBU) The definition of "public interest" has been a contentious
issue in some of Phnom Penh's high-profile land disputes (Ref A).
The law attempts to alleviate this problem by including an extensive
list of permissible public infrastructure projects, such as roads,
airports, power stations, and construction for national defense and
security. However, the last item on the list is a blanket clause
permitting expropriation for any activity "as required by the nation
in accordance with the determination made by the government." NGOs
highlighted this and the lack of clarity regarding the definition of
"fair and just" compensation as their top concerns.

4. (SBU) The draft law establishes an inter-ministerial committee
led by the MoEF to implement expropriation measures. The committee
would: 1) notify affected property owners of the timeline for a
particular project; 2) announce the project publicly; 3) determine
compensation based on the property's market or replacement price;
and 4) set a deadline for owners dissatisfied with the results to
file complaints with a separate Complaint Resolution Committee.
Property owners are given one month from the time they receive
compensation to vacate expropriated property, and an eviction cannot
be carried out unless compensation has been provided, except for
emergency situations.

WHY A NEW LAW?
--------------

5. (SBU) The 2001 Land Law and Cambodian Constitution each include a
provision that mandates fair and just compensation for land owners
in advance of expropriation measures. SRP lawmakers have argued
that because the Land Law addresses state seizure of private land, a
separate expropriation law is unnecessary. According to an official
at the MoEF, the regulations indeed initially began as a sub-decree
to the Land Law. Nhean Somunin, a land law expert at the East-West
Management Institute (EWMI), told Poloff that the MoEF had drafted
the sub-decree with financial support from the Asian Development
Bank (ADB) and technical support from EWMI. The sub-decree focused
on addressing socio-economic impacts caused by development projects
and provided a standardized process to support an expropriation
provision already in the Land Law.

6. (SBU) However, human rights NGOs and some donors protested the
lack of wider public consultation and criticized the provisions of
the sub-decree as inadequate to protect land owners' interests. An
ADB consultant acknowledged that there may have been weaknesses in
the sub-decree, but countered that its passage would have filled a
significant hole in the legal framework necessary to address the
impact of state development projects. Critics argued that
government expropriation was such a complex and important subject
that it warranted its own law, passed by the NA, followed by a
series of implementing sub-decrees. The MoEF subsequently abandoned
the sub-decree and began to craft a separate statute. A MoEF
official said that the RGC preferred a NA-approved law anyway, as it
would be as a stronger legal instrument to cite when facing

PHNOM PENH 00000017 002 OF 003


criticism from NGOs and donors over evictions.

7. (SBU) (NOTE: Although the sub-decree's critics got what they
wanted, they now face an expropriation law that will be tougher to
oppose because of its independent status. An independent
expropriation law allows for legal activities beyond the scope of
other laws, such as the seizure of private land without prior
compensation in emergency situations, which the Land Law would not
permit. However, ambitious opponents could try to challenge the new
law on grounds that some of its provisions contradict articles of
the Constitution. END NOTE.)

NGOs, LEADING LAND DONORS HAVE LIMITED INPUT
--------------------------------------------

8. (SBU) Unlike the relatively more open process for the draft
circular on urban resettlement (Ref B), there was limited public
consultation on the draft expropriation law. Even representatives
of the ADB claimed in early 2009 not to have seen the draft, despite
having worked with the MoEF on the original expropriation sub-decree
and a related sub-decree on resettlement. In May 2009, the Cambodia
Daily newspaper received an unofficial draft that was close to the
final version of the law but could not be independently verified as
many RGC officials were unfamiliar with the legislation. When human
rights NGOs received an official copy of the draft law in October,
after it had passed the CoM, they quickly organized public
consultation sessions on the law, in which RGC representatives chose
not to participate.

9. (SBU) At a December 9 civil society workshop on the draft law,
NGOs presented an extensive list of issues and requested changes. A
representative of German development agency GTZ, one of the largest
donors involved in the land sector, advised the NGOs that changes to
the draft law at that late stage were unrealistic, and recommended
that they focus on one or two priority issues in a submission to the
NA. However, the NGOs only narrowed the list down to 14 items
before submitting it to lawmakers for review, and NA Vice President
Ngoun Nhel quickly responded that legislators were unlikely to
accept the majority of the proposed changes.

10. (SBU) Donor engagement with the NA on the draft expropriation
law was similarly limited. In late December, the Canadian
International Development Agency (CIDA), the other large land sector
donor, organized a technical briefing through its Cambodian-Canadian
Legislative Support Program (CCLSP) for the Cambodian Senate's
Finance and Banking Committee; representatives of the World Bank and
the UN Office of the High Commissioner for Human Rights (UNHCHR)
conducted the briefing. As the briefing took place the same week
the legislation was being debated in the NA, the World Bank had
suggested that the Senate include NA members in the session.
However, the World Bank representative, Daniel Adler, told Poloff
that the Committee Chair, Chea Cheth, considered the topic
"sensitive" and did not want to discuss it with Cheam Yeap, his
counterpart at the NA.

SENATOR: THE CPP CAUCUS IS WHERE DEBATE TAKES PLACE
--------------------------------------------- -------

11. (SBU) Adler described the briefing as lively, with the group of
five CPP and two FUNCINPEC Senators discussing the controversial
"public interest" definition in the draft law and how the Cambodian
law compared to international standards. Senators also raised
concerns about whether the law would reduce instances of land
conflict, given the experiences of past state expropriations, as
well as concerns over potential corruption in the implementation of
the law. Adler said that Chea Cheth was very clear, however, that
the Senate would recommend no changes to the law. (NOTE: Under
Cambodian parliamentary procedures, the Senate does not pass laws;
it can only recommend changes. END NOTE.)

12. (SBU) Chea found though that the technical briefing was
informative, according to Adler, and he noted that similar exercises
would be helpful in the future for lawmakers as they evaluate other
important pieces of legislation. The Senator recommended technical
briefings for future laws take place at the time of the CPP caucus,
where CPP Senators and NA Members gather to discuss pending bills.
According to Adler, Chea indicated that the CPP caucus was the point
where real debate took place and changes were possible, behind
closed doors; by the time a draft law reached the floor of the NA,
the CPP would have already finalized its parliamentary position.

NA PASSES LAW UNAMENDED, CHAPTER BY CHAPTER
-------------------------------------------

13. (SBU) The following week on December 28, the NA opened debate on
the draft law with SRP parliamentarians challenging specific
articles in the law and questioning the timing of the new bill. SRP
MP Yim Sovann questioned how the law could be implemented, given

PHNOM PENH 00000017 003 OF 003


that the vast majority of Cambodian land owners still lacked hard
titles. SRP parliamentarian Mu Sochua pushed for specific language
clarifying property owner compensation and participation in the
expropriation process. Others drifted into a broader debate about
the definition of "public interest" and argued that many current
development projects, such as economic land concessions, did little
to benefit poor Cambodians and enhance national or public interests.


14. (SBU) CPP lawmakers displayed little interest in debating or
entertaining changes to the law. NA Vice President Ngoun Nhel had
told the press before the debate even began that the government
wanted to speed up the passage of the law, so allowing changes that
would require the draft to be sent back to the MoEF for revision
would be "in opposition to the government's principle." Cheam Yeap,
Chairman of the NA's Economy, Finance, Banking, and Audits
Commission, co-drafted the law and insisted in the December 28
session that it was adequate in its current form to protect the
interests of Cambodian land owners. Midway through the second day
of debate, MoEF Secretary of State Ouk Rabun, who was present to
answer questions, stated simply that no changes would be made to the
draft.

15. (SBU) On December 29, the NA passed the final chapters for the
draft law in a vote along party lines. The Senate will formally
review it next, after which the King will sign it. Cheam Yeap
announced that he expected the law to take effect by late January.


COMMENT
-------

16. (SBU) A clear framework for expropriation is without question
necessary as Cambodia continues to require space for its
infrastructure development. However, the law's open-ended
definition of "public interest" projects may lead to more
questionable but technically legal evictions of individuals from
private land. Phnom Penh municipal officials, for example, have
used the public interest argument to justify removal of urban poor
communities (Ref A); now they will have a legal guideline under
which to continue. In many countries, expropriation laws are
purposefully vague given the variety of situations to which they
might apply; rulings on issues such as "fair and just" compensation
are often left to the courts. However, in Cambodia, impartial
implementation of the regulations by the RGC and fair interpretation
by the judiciary are unlikely.

17. (SBU) The journey of the law from the CoM to the NA also
illustrated issues regarding NGO and donor engagement with the RGC,
as well as some worrying flaws in CPP's use of majority status in
the parliamentary process. NGOs' inability to focus their arguments
cost them an already limited opportunity to potentially have input
into the law. CIDA's last-minute Senate briefing revealed that it
is still growing into its role as a leading land sector donor since
the withdrawal of the World Bank (Ref B). Even if CIDA and the NGOs
had been more focused and proactive, however, their influence would
likely still have been limited. Actions of the CPP majority -- both
in caucus and during opens sessions in the NA -- only serve to
reinforce criticisms that the legislature is essentially a rubber
stamp for the executive.

ALLEGRA

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