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Undersecretary
of State, Ministry of Ecomomy and Finance
Chairman,
Interministerial Resettlement Committee
Phnom
Penh
Dear
Excellency Nheng Leng:
This
letter is presented on behalf of 99 families living along National Rd. 1 in Prey
Veng Province affected by the Cambodian Government’s improvement of that road.
As you know, the improvement work is financed by your Government and the
Asian Development Bank (ADB).
Overall,
the families welcome the road work, and appreciate that the government is
willing to, or has, compensated them for some of their losses due to the work.
With due respect to the Government, however, the families wish to say
that, in some ways, the compensation has not been adequate.
The main purpose of this letter is to explain what is not adequate.
The
families are in 3 groups:
1.
37 families in Peam Ro District, Prek Khsay Commune, Neak Loeung Village;
2.
16 families in Peam Ro District, Neak Loeung Commune, Steng Slot Village;
3.
46 families in Kompong Trabek District, Kompong Trabek Commune, Kompong Trabek
Village.
These
are surely not the only families affected by the road work who believe their
compensation is inadequate. The
issues raised by the 99 families are certainly issues that other families would
want to raise. Once the case of
these 99 families has been sufficiently negotiated by all necessary parties, NGO
Forum and LAC will consider what to do about other affected families.
In
this letter we first discuss the legal basis for compensation for all 3 groups,
then the cases of each of the 3 groups.
1.
Legal Basis for Compensation
The
primary legal basis for compensation is the Loan Agreement between ADB and the
Cambodian Government covering work on Road 1 between Phnom Penh and Ho Chi Minh
City, and an ADB memo entitled "Involuntary Resettlement" dated August
1995 which Schedule 6.2 of the Loan Agreement requires be followed.
It is also necessary to discuss the Cambodia Resettlement Implementation
Plan, dated October 1999, which the same schedule of the Loan Agreement requires
be followed, and certain Cambodian laws. When
mentioned below, the 3 documents mentioned in this paragraph are referred to as
"LA" for Loan Agreement, "MIR" for memo entitled
"Involuntary Resettlement", and "CRIP" for the Cambodia
Resettlement Implementation Plan.
The
LA is the fundamental agreement between the ADB and the government regarding the
road work, from which all requirements flow. The MIR was in existence at the time the LA was signed and
incorporated by reference. The CRIP
was created after signing the LA. It
was not made the subject of a separate, independent contract but rather exists
as a kind of annex to the LA that was to flow from the LA.
The
primary issue addressed by this letter is that of compensation for land given up
to highway use.
LA
Schedule 6.3.ii states "Project affected people shall not be required to
have formal legal title to the land used by them in order to be eligible for
compensation." (Likewise MIR
34[vii].) The ADB President’s
report recommending the loan that would make possible the highway work states:
“PAPS (project affected people) who reconstruct on the same site will receive
cash compensation for land lost according to compensation schedules presented in
the detailed RAP (resettlement action plan).
No distinction will be made between legal and illegal PAPS.” (“Report
and Recommendation of the President to the Board of Directors on Proposed Loans
to the Kingdom of Cambodia and to the Socialist Republic of Viet Nam for the
Greater Mekong Subregion: Phnom Penh to Ho Chi Minh City Highway Project,” Nov
1998, Appendix 13, pg. 5, item 22.)
The
words in the above paragraph are plain and unambiguous.
They say nothing about why such people don’t have title.
The words are simply to the effect that irregardless of whether such
people do or don’t have title, they are to receive compensation.
The
LA states in Schedule 6.2 that "In case of discrepancies between the
Borrower's procedures and the Bank's requirements, the Bank's requirements shall
apply.” As indicated above, the Bank’s requirements are that with or without
title, affected people are to receive compensation for land given up to the road
work. (See MIR 34[vii].)
Thus, although a 2000 declaration by the Cambodian Minister of Economy
and Finance (No. 961 SHV) states that people living in rights-of-way need not be
compensated for land they are displaced from, nevertheless the Cambodian
government is obligated to compensate for land taken from the project-affected
people covered by this LA. To do
otherwise would be in breach of contract.
It
is important to note that it is not unusual for the Cambodian Government to make
agreements that provide for greater rights or benefits for certain of its
citizens than for the general population. For
example the Government has signed a textile trade agreement with the US
Government that requires the Cambodian Government to follow International Labour
Organization conventions in the garment industry that provide greater benefits
to garment workers than general Cambodian law provides to other kinds of workers.
There is a further basis for land-loss compensation in this case. MIR 33(ii) states that displaced people shall receive assistance "so that they would be at least as well-off as they would have been in the absence of the project ..." (See also CRIP 1, pg. 1.) As can be seen in certain of the attached tables, most of the 99 families report having paid for the land they have given up or are being asked to give up to the government for road use. Also, most report having been required to pay informal fees to local government authorities in order to complete the purchases and move in. Those people who have lost all their land and have had to relocate have an especially strong case under MIR 33(ii), though all of the 99 families have a strong case for compensation under MIR 33(ii). All are entitled either to fair monetary compensation or to be relocated to new land which is not worse than their original location, depending on how much land they give up to road use. (See ADB President’s report cited above, Appendix 13, pg. 5, item 18. See also MIR 34[ii].) To not compensate people for lost land who went through all this would obviously violate the LA and ADB policy. Furthermore they must be compensated at full value of the lost land: LA Schedule 6.3.iii states that "the amount of compensation in respect of land acquisition (from displaced people) shall be at a level sufficient to cover the full replacement cost of the land ..."
For
all of the above reasons then, all 99 families should be compensated at full
fair market value for all land they had been occupying that has been or will be
given over to road use, or should be given comparable relocation sites,
irregardless of any Cambodian laws to the contrary.
The
government, however, declines to pay any compensation for land, and CRIP
purports to be able to permit this. The
Cambodian laws and CRIP sections relevant to the government’s position are as
follows:
The
1992 Cambodia Land Law stated in article 5, and the 2001 Land Law states in
Article 15, that there cannot be private right in government roads, but these
laws do not say how wide are different kinds of government roads in which there
can be no private right. A Declaration by Prime Minister Hun Sen in 1999 stated
that the width of Road 1 as owned by the Government is 60 metres.
(Declaration on Eliminating Solution on Anarchy of Land Occupation,
Declaration No. 6, 27 Sept 99.) The
Declaration also states in section 8 that this width rule does not apply “in
towns”.
The
CRIP stated in one section that the Government claims 50 metres (CRIP section
6.1) for Road 1, and in another that since 1953 all Cambodian governments have
claimed 60 metres for Road 1. (section 5.2)
In any case in the event of a discrepancy between the CRIP and the Prime
Minister’s Declaration, the Declaration would control.
The
group of families covered by this letter whose properties are in Neak Loeung are
in a town, therefore the Prime Minister’s declaration does not apply to them.
Under the 2001 Land Law, these families are all entitled to ownership
certificates to the land they occupy because they have been there more than 5
years. (See Land Law article 30.)
If the Government wishes to take any of this land for a public use, such
as for Road 1, the Government must pay full fair market value for the land.
In
1 of the other 2 groups of families, in Kompong Trabek, 8 families applied for
possession under the previous, 1992, Land Law, and now have possession
application duplicates and/or receipts from the government.
As of the time they made these applications, there was no law fixing the
width of the right-of-way for Road 1. The
CRIP states, as noted above, that since 1953 all Cambodian governments claimed
60 metres, however article 1 of the 1992 Land Law cancelled all land rights
pre-1979. No new law establishing
width of this road was enacted until the Prime Minister’s declaration in 1999;
all 8 applications were made before the declaration.
Therefore all families with possession application duplicates and/or
receipts in this group of people have created fixed rights to all the land they
occupied. The Government may now
take this land for road use but must pay full fair market value for doing so.
(See articles 61-76.)
As
mentioned above, a 2000 declaration by the Minister of Economy and Finance
states that in order to properly implement the Prime Minister's above
Declaration, the government refuses to compensate anyone occupying land within
government rights-of-way. (Ministry
of Economy and Finance No. 961 SHV, 6 April 2000.) In the CRIP it is stated that persons using land within the
National Rd. 1 right-of-way will not be compensated for giving up use of this
land: CRIP 9.1 states that persons within the right-of-way "are not
eligible for compensation ..." The
Government takes the position that all 99 families are within the right-of-way
and not entitled to compensation for land and indeed there has been no land
compensation for these families.
It is submitted that this refusal to compensate regarding land violates the Government’s contract obligations in LA and MIR, violates fundamental ADB policy, and with regard to all families in Neak Leoung and 8 in Kompong Trabek, violates Cambodian laws as well. The government willingly entered into the LA and must abide by its provisions. The ADB has proclaimed its displacement/resettlement policies to the world as evidence of its sensitivity to the effects on the poor of infrastructure projects it finances. The CRIP as an after-the-fact annex should have merely refined the LA, and should have applied the MIR to conditions along Road 1. Instead the CRIP deviated from and violated the LA and MIR in this very fundamental matter of land compensation.
It
is requested that the Government and ADB reconsider the refusal to compensate
for land.
It is further requested that in compensating the 99 families for land given up to road use, and for certain other bases for compensation, consideration be given to the attached tables.
In
addition regarding land, LAC notes that the ADB president in his 1998 report
to
ADB directors wrote that "Illegal PAP's (project affected people) will be
provided with land certificates by the district authorities at no cost."
(Appen. 13.E.2.c.22, pg. 5.) This
means that upon resettlement, the resettled people, even if their prior
land-occupation arrangements were illegal, will be provided land certificates
for the land they resettle onto. It
is requested that this promise be honored with respect to the 99 families.
Principles contained in the LA
and MIR regarding structures are similar to those regarding land.
LA Schedule 6.3(iii) calls for paying for the "full replacement cost
of the land and the structures built thereon."
The ADB president’s 1998 report stated that "Compensation for all
structures will be at replacement cost and must be sufficient to completely
rebuild the structure at the time of compensation."
(Appen.13.E.2.a.15, pg. 4.) The
report also said that "People occupying illegal structures will receive the
same assistance and compensation as those with legal title."
(Appen.13.E.2.a.17, pg. 5.)
The LA and MIR also call for displaced persons to be compensated for loss of income. LA Schedule 6.3(i) states that they shall "not face a material reduction in income." MIR 34(i) calls for "compensation for lost assets and loss of livlihood and income."
We
now turn to matters particular to each of the 3 groups of people that make up
the 99 families.
As
a preliminary matter it is important to know that none of the 37 families in
Neak Loeung have yet accepted Government compensation offers; none of these
families have moved. On the other
hand all families in the other 2 groups have accepted some compensation and have
moved.
2. 37 Families in Neak Loeung Village
(Various
documents gathered or prepared in connection with writing this letter are not
attached because they are so bulky. Nevertheless the Government and ADB are
welcome to see and copy any such materials.)
Attachment 2 is a table of data extracted from all of the above sources of information. Attachment 2 presents conclusions as to what it is believed each family is entitled to in terms of compensation. As can be seen, there are 3 classes of families in terms of conclusions: those for whom a full, dollar conclusion regarding land compensation and building relocation is drawn and presented (17 families); those who agree with the 17 regarding land value but for whom there are questions regarding buildings compensation and who would therefore like this issue reinvestigated by the Government, with ADB assistance (13); and those who disagree with conclusions drawn by these above 30 regarding land value, which conclusions are explained below, and also disagree as to Government offers regarding buildings (7). Because these 7 disagree regarding both land and buildings, their data is not presented in Attachment 2.
In researching compensation issues for these 37 families, there was an attempt made to analyze the matter of loss of income during the time of relocating. We found this difficult and would like to ask the Government to provide us its determination on this point for all 37 families.
3. 16 Families in Steng Slot Village
Of the 16 families, 10 request the Government give them land as indicated on the map in Attachment 5 entitled “Map of Steng Slot (New place that the 10 families want)”. The 10 are listed on this map. It is believed that this proposed relocation site consists of land of equal quality to that which was vacated. The other 6 request monetary compensation for land. They request that the amount be determined by whatever is the per family cost to buy the area that the 10 wish to move to.
The 16 families were already given compensation to move. However because the relocation site is so dreadful, these families are entitled to move again and be compensated again. They request $300 per family to break down and move parts of buildings and for general moving and construction costs.
These families are also requesting loss-of-income compensation in amounts shown in the document that is the compilation of responses to the general questionairre.
4. 46 Families in Kompong Trabek Village
Thankyou
very much for considering our concerns for the project-affected people living
along Highway One.
Sincerely,
Russell
Peterson
Min Tith Malis
George Cooper
Representative
Legal Assistant
Legal Consultant
NGO
Forum on
Cambodia Legal
Aid of Cambodia
Legal Aid of Cambodia
Attachments
cc:
Asian Develpment Bank