Monday, October 5, 2009

Trespassing on your own land

Last week I went with the lawyers in the Land Law Program at Legal Aid to Siem Reap to visit two clients, husband and wife, who are in prison, accused of trespassing on their own land.

Their story is pretty typical: they're both former Khmer Rouge soldiers who settled on their farm after the fighting with the government stopped in the '90s. There was a government program, whereby you could take ownership of land by clearing it and removing any land mines in it---a sort of Homestead Act for Cambodia. The villagers did all that, established their farms, and started putting their lives back together.

Unbeknownst to our clients, however, the village chief illegally sold everybody's land to some politician quite early on, maybe ten years ago now. The politician in question (who is now a National Assembly member) bought the land as an investment---his intention was to sell the land for profit, not to farm it, so he left the villagers alone. Over the years the paper value of the land has skyrocketed, and it changed hands several times. Meanwhile, the villagers have continued farming the land, subsisting on their harvests as they've done since the war ended, totally unaware that influential people in the capital were speculating on its value.

That, to me, is one of the most revealing parts of the case. The villagers can continue farming the land, and the speculators can continue trading the land, coexisting in parallel universes, more or less blissfully ignorant of each other. It just so happens that the villagers are the legal owners of the land, but as long as their use of land---i.e., farming---doesn't conflict with the speculators' use of the land---i.e., profit---an equilibrium is maintained.

Our clients, however, decided to assert their legal claim to the land by seeking formal title to it. (Since the Khmer Rouge destroyed all records having to do with land ownership, it's very common for people to have a legal claim to their land without title, an actual piece of paper, recording that fact.) As soon as our clients sought formal ownership of the land, their interest collided with that of the speculators. The actual legal collision here is quite straightforward. The speculators think they own the land, but they don't, because they were defrauded in the first place; they have, in all fairness, been taken for a ride. They have a mess of their own to sort out, sorting out who owes what to whom over this rotten deal. But the villagers own the land---simple as that.

In Cambodia's courts, however, nothing is simple. The villagers may have the law on their side, but the speculators have money and influence. It's the easiest thing in the world for them to exert a little pull---and it really takes just a little---and steamroll the villagers. That's how our clients wound up in jail. The speculators bribed someone, or made a call, or both, and now our clients are looking at a year in prison for trespassing on their own land.

The really crazy part is that there's a whole system of special commissions, called Cadastral Commissions (from the French cadastre, for 'register of property'), charged with sorting out precisely this kind of all-too-common dispute. The only way to get definitive title to land is through that system. The speculators never went through that system, meaning that they have no legal support for their claim that they own the land. In essence, the speculators have succeeded in having two people locked up for trespassing on land that nobody legally owns.

What's worse is that our clients have four children, who are now stranded on their farm with nobody to take care of them. Chheng Ourn, the director of LAC's Land Law Program, filed a motion with the court to dismiss the trespassing charges, so hopefully their parents will be out of prison soon, but there's really no saying. My task now is to try and find some NGO to take in the children, but even that might not happen---they're all overbooked and underfunded, so finding one to take in four more kids will take some doing. Right now, the village is inaccessible by road thanks to flooding from Typhoon Ketsana, so the kids are making do with the food that Legal Aid dropped off last week.

There was a World Bank project to help improve matters. They were resolving land conflicts and issuing titles to avoid precisely this kind of situation. But the day after we got back from Siem Reap, we learned that Cambodia's government has ended the program, which according to a local rights group, was "an abysmal failure."

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