Michael Kirk (1996):
The Dynamics of Land Tenure and Land Management in Cambodia:

4. Problems in Constructing a Registry System in an Uncertain Legal and Political Environment

21. Measured against Laos, the existing legal framework for property rights in the Kingdom of Cambodia are still comparatively incomplete, and partially contradictory:

22. In the Land Law of 1992 which forms the basis of land registration, elements of family law, inheritance and contract law are indeed integrated, but only to the degree that they are supposed to regulate the transfer of land. An equivalent to a general Civil Code, i.e. a civil statute book in which the conditions for the transfer of property and the drawing up of contracts should be generally set down, does not yet exist, but is supposedly being worked on. Information about the state of the process of legislation was, however, very difficult to get a hold of during the study trip! The same goes for a set of rules about the certification of contracts and last wills, etc.

23. Since the weaknesses in the Land Law are known to the Administration and the interest groups (e.g. incompleteness, unclear terms, at present also limited by the slavish takeover and forcible application of the French model to Cambodian conditions), the Law can hardly more than bring a basis for decision into play in cases of conflict. Two legal amendments are expected:

• a reformed Land Law which also ought to solve the conflicts between the various legal bases for land registration in the city of Phnom Penh, and for the rest of the country (see below)
• a civil code for the foundations of contract law.

24. The Council of Ministers is aware of this uncertainty or rather blockade, and emphasizes the necessity of working out contract, family and inheritance laws as quickly as possible. However, the Land Titling Project must work in a framework which continues to be unclarified and a bit contestable during the next months (presumably years). Two factors have an additionally aggravating effect:

25. It is not conclusively recognizable if the legislator and the political parties and lobbyists who influence the parliament really have an interest in rapid and clear legal framework conditions, or if it is not simpler to enforce a redistribution of urban and rural property and land immediately through the exertion of political, military and economic power, rather than through the rule of law. Those responsible in the project will possibly have to call persistently for the enforcement of the reform, in spite of all the lip service of the Council of Ministers.

26. The current Land Law has been definitively formulated by the director of the Land Title Department in such a way that it will not be easy for him to make himself a lawyer in a reformed legal framework.

27. In the neighboring Laos, a hefty debate is currently being carried on about the inclusion of Customary Rights and the group-specific distribution effects of the re-structuring of property and land, and in particular about the inclusion of gender aspects into the resources legislation. The legislator can no longer withdraw itself from the confrontation created by this debate by using international donors (World Bank) and a coordinated action by NGO's. In Cambodia, these questions, which are also important for land registration, are ignored at the official level, or rather they are not considered relevant. The Minister of Justice, for example, in principle denies the existence and justification of Customary Rights, substantiating this with the social upheaval of recent decades, the forced resettlements, the mass murders, and thus the loss of an "institutional memory" through which oral regulations are maintained and developed.

28. Not only information from Administration officials and project cooperators, but also very superficial impressions during our field trips showed us directly that land registration, demarcation of fields, and conflicts in villages are decided at the working level of the Land Titling Project according to autochthonous norms handed down form generation to generation and rules of land access, land distribution and conflict arbitration. In a country in which it has been attempted to enforce five, sometimes extremely varied political systems and ideas of the law in only 30 years, customary rights further play a central role as a basis for regulations of social relationships, particularly in rural areas.

29. Accordingly, it is necessary for the GTZ project to have an extensive overview here so as to a) use the traditional set of rules below the judicial level for the continuation of the registration process, and b) develop an understanding for, and perhaps steer away from, the causes of possible blockades and delays.

30. Since the younger generation has grown up without personal legal security, and the older generation has at least lost once its seemingly guaranteed and protected possessions of house and land (and has only had them partially returned), trust is only slight in to the State legislation in general, and in the reliability of land titles specifically. Therefore, the GTZ project ought never to lose sight of the fact that, with all the technical and administrative requirements for reform, the legitimizing of land registration is not yet anchored in the population, and always has to be fought for and proven again and again. Along with this, the role of the "Land Titles Department" in conflicts will be very closely observed.

31. While the "Land Titling Department" works according to the Land Law (1992), the registration of developed properties in Phnom Penh takes place in the Registry Office in the city on the basis of an old decree from 1989 which partly contradicts the Land Law (see Annex). The two set-ups have long been openly in conflict. The leading cadres accuse each other of illegitimate dealings, and thus obviously block unified action. What the contradictions and inconsistencies are is not immediately recognizable to the outside observer.

32. The identification and brief and precise analysis of both the relevant wordings of the law, the history of their origins, and their actual application by a neutral Cambodian consultant who is not thus far involved in the dispute would be helpful for a new start for and a future constructive collaboration between the two set-ups. Of course, there is the danger that both systems have already drifted far apart since the municipal Registry Office is supported by an EU-Project which is dominated by French ideas of land registration and cadastre system, and thus problems of compatibility could arise.

33. Legally secured regulations for implementation for the procedure of land registration which have been made public in regional legislative bodies do not yet exist. This leaves a lot of space for negligence and arbitrariness. The "Land Titling Project" works according to self-formulated regulations which would, however, withstand legal challenge from unsatisfied participants who are versed in the law. The wording of legally flawless regulations for implementation is urgently needed, but first of all through a second step: they can first be formulated with long-term perspectives and be legitimized by the Council of Ministers when clear framework legislation exist on which they can be constructed.

34. The current procedure of awarding and registering titles which requires up to 16 administrative steps is currently being critically analyzed by the project (see the flow charts drawn up by the project in the Annex), so as to formulate suggestions for a simplified form of procedure. This is a first step designed to lighten the work in Registry Offices at the District and Province levels even under very uncertain legal framework conditions. But it also helps in particular to make the process more transparent for the participants on the spot, i.e. for the Administration officials in the Communes, the village chiefs and in particular for the applicants, and to build up the trust in the registration of land. For a long time, many false expectations have grown up about registration thanks to a lack of knowledge about the procedure. This means that the receipt issued by the Registry Office and handed to the applicant confirming the process of registration has already been initiated, acts as a land title.