Currency UnitKR1.00

$1.00

ADBMLMUPC

--

MOJTA

--

.CURRENCY EQUIVALENTS

(as of 11 December 2000) .Riel (KR)$0.00026KR3825.00

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ABBREVIA' .Asian Development BankMinistry of Land Management,ConstructionMinistry of Justicetechnical assistance

Urban Planning and .

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NOTE

In this report, "S" refers to US dollars

1. In July 2000, the draft Immovable Property Law, which was prepared by the Ministry ofLand Management, Urban Planning and Construdion (MLMUPC) with technical assistance(TA)1 from the Asian Development Bank (ADB), was submitted to the National Assembly.Subsequently, the Government of Cambodia asked ADB for assistance to further develop andimplement land legislation. TA for the development of the legal and judicial system is included inthe 2000 country assistance program for Cambodia as part of the overall T A program toimprove governance. The ADB Fad-Finding Mission visited Cambodia from 17-31 July 2000and reached an understanding with the Government on the objedives, scope, cost estimates,and implementation arrangements for the TA.2 The TA framework is attached as Appendix 1.

II. BACKGROUND AND RATIONALE

2. After decades of war, internal strife, and uncertainty for the general population, thesituation in Cambodia is now stabilizing and the Government is focusing on restoring thecountry to a state ruled by law. The needs in this respect are enormous. Among the mostglaring shortcomings are the following:

(i) The legislative framework - the system of laws and regulations governing the fairand effective functioning of society and its members - still has major gaps. Whileefforts have been made over the last several years to draft new laws andregulations, the law-making process has suffered from a lack of coordination ofgovernment agencies involved in the drafting process and of aid agenciesproviding assistance for the preparation of legislation.

(ii) The judiciary is seriously understaffed with about 176 magistrates (judges andprosecutors) for the whole country. It is also poorly equipped in terms of courtfacilities, and lacks the necessary basic legal education and professional trainingfor the proper performance of its task of interpreting and applying the law in aconsistent, transparent, and equitable manner. Only about 12 of the judges in thecountry have a full-fledged law degree.

(iii) Corruption among magistrates, court personnel, and law enforcement officers isa pervasive probtem, caused in part by a grossly inadequate salary structure forthe judiciary and other civil servants.

(iv) Powerful people have been able to disregard, with impunity. whatever rulesexisted; consequently, the confidence of the public in the legal system is minimal.

3. The lack of an effective and equitable legal and judicial system constrains social andeconomic development. Certain current inadequacies in the legal system actually pose a threatto the country's fragile internal peace and stability. Land ownership and related rights, inparticular, are a source of potential conflict because of the lack of clear rules and an institutionalframework to ensure implementation of Such rules. The forced mass exodus from the cities tothe rural areas and the decimation of the population during the Khmer Rouge regime wreakedhavoc with the land ownership system existing before 1975. Subsequently, from 1979 to 1992,

1 fA 2591-CAM: Agriculure Policy Refam Suppolf, for $1,500,000, approved on 20 June 1996.2 The fA first appeared In ADS Business Opportunities (Internet Edition) in August 2000.

INTRODUCTIONI.

all private land ownership was formally abolished in favor of the state. The 1992 Land Law,which gave the state ownership of all nonresidential land, is now generally recognized to beinconsistent and unclear. Furthermore, in the absence of a clear legislative framework,registration system, and enforcement mechanism, powerful individuals, officials, and militarycommanders have been involved in "land grabbing". As a result, many people, especially thepoor and powerless, have lost their land. People have taken to the streets to demonstrateagainst land grabbing. Failure to restore a transparent and fair system of land ownership and aneffective enforcement mechanism will increase social inequity and has the potential of leading tocivil unrest, undermining the already fragile rule of law and state legitimacy.

4. Recognizing the importance of farmers being certain of their rights to agricultural land,ADB required that the 1992 Land Law be revised as one of the conditions under its AgricultureSector Program loan3 and provided TA for drafting the new law (footnote 1). Other sectors willalso benefit from an improved land tenure regime. The need for a clear and properlyimplemented land ownership system is universal in Cambodian society. Land tenure, especiallyin rural areas, is a crucial tool in fighting poverty.

5. The draft Immovable Property Law, which is to replace the 1992 Land Law, has thebroad support of civil society, which was closely involved in the drafting process. Indications arethat the draft law will be passed in the near future. However, to ensure that the new law willhave its intended effect, clear and unambiguous implementing decrees and regulations must bedrafted and adopted; judges, lawyers, and land registry officers responsible for implementation,interpretation, and application of the law must know and understand the law and itsimplementing decrees and regulations; and the people must be made aware of their rights andobligations under the law, and how to realize their rights.

Objectives

6. The objectives of the TA are to help (i) establish a legal system, including implementingmechanisms that will resolve the existing uncertainty, disputes, and chaos with respect toownership and related land rights; (ii) build the capacity of the judiciary. legal community, andtechnical staff responsible for implementing the Immovable Property Law, and therebycontribute to restoring the general public's confidence in the legal system; and (iii) raise publicawareness of the Immovable Property Law and increase people's access to mechanisms torealize their rights under the law. While the TA focuses on land legislation, the beneficial effectsof capacity building and public awareness raising will reach beyond land related issues.

Scope

7. The TA comprises three components.

8. Drafting Implementing Decrees, Subdecrees, and Regulations. The draft lawrequires some 16 decrees, subdecrees, and regulations Oointly referred to as (sub)decrees) toprovide details on the implementation of certain aspects of the law. The most crucial onesconcern (i) responsibilities, organization, and operation of the Land Registry; (ii) establishmentand regulation of a land registry commission as a primary dispute settlement body; (iii) various

3 Loan 1445-CAM(SF): AgricuWure Sedor Program, for $30,000,000, approved on 20 June 19~.

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THE TECHNICAL ASSISTANCEIII.

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types of concessions for state private property,. in particular, social concessions for subsistencefanT1ing and industrial concessions for large-scale agricultural exploitation; (iv) sale of stateprivate property; and (v) donation of state private property for social purposes. Assistance indrafting some of the most urgent (sub)decrees will be provided under the ongoing TA forAgriculture Policy RefonT1 Support (footnote 1). The TA will provide assistance in drafting thebalance of the required (sub)decrees.

9. Training the Judiciary and Others. A training program will be developed under the TAfor judges, prosecutors, legal court personnel, and others involved in implementing the new landlegislation to familiarize them with the provisions of the new law and implementing(sub)decrees. The training will be for magistrates already appointed to the bench and recentgraduates from the Faculty of Law of the University of Phnom Penh, some of whom will be thenext generation of magistrates. In addition, staff from the land registry offices will be induded soas to develop a mutual understanding among the judiciary and the staff involved in the technicalaspects of land titling. Members of the Cambodian Bar Association and legal aid organizationswill also be invited to participate in the training. While the new land legislation will be the mainsubject of the training program, the practical training provided will help to increase the capacityof the judiciary on a broader level. In that sense, the training program will serve as a modestpilot program for a much-needed more general training program for the judiciary. Thus, thetraining will not only focus on the contents of the legislation, but also on practical skills requiredfor the judiciary, induding legal reasoning, drafting of judgments, communication skills, andmediation and conciliation skills. As part of the training materials, a benchbook will bedeveloped for use in the courts to assist judges and court personnel in organizing and managingthe cases that are brought before them. The program should follow a participatory approach,with ample opportunity for the participants to test their understanding of the new legislation injoint exercises, such as moot trials and case studies. Joint exercises will help to increase mutualrespect and understanding of the various parties responsible for implementing, interpreting, andupholding the law. Approximately 300 - 350 participants will be trained; about 10 two-monthtraining courses will be undertaken. The exact structure of the training program will be finalizedby the consultants in consultation with the TA team (para. 12). The training will be delivered inPhnom Penh and the provinces, in locations to be determined based on available facilities.

10. Dissemination of Information to the Public. A pradical handbook in the Cambodianlanguage will be prepared to explain the Immovable Property Law in simple terms. Thehandbook will provide a glossary of unfamiliar terms and will be used by the legal and laycommunities. In addition, a public information program will be carried out to inform thepopulation of the new legislation, their rights and obligations under the law, and systems andmechanisms to realize their rights. The public information program will include preparation andmechanisms to realize their rights. The public information program will include preparation andbroadcasting of radio and television programs, preparation and distribution of brochures andposters, and other methods to reach illiterate people. The lessons learned under the ongoingregional TA for Legal Literacy for Supporting Governances will be taken into account inimplementing the information program. The information program will be carried out in closecooperation with nongovernment organizations and civil society.

4 The law distinguishes between state prtvate property, which may be alienated, and state public property, whichmay not. ;

5 TA 5856-REG: Legal Literacy for Supporting Governance, for $500,000, approved on 24 August 1999.

3

Cost Estimates and Financing Plan

11. The total cost of the T A is estimated at $710,000 equivalent, comprising foreignexchange costs of $457,500 and local currency costs of $252,500 equivalent. ADB will financethe full foreign exchange cost and $142,500 equivalent of the local currency expenditure. TheGovernment will provide the balance of the cost, including the cost of training facilities,accommodation for the trainees, counterpart staff, office accommodation, logistical support, andradio and television broadcasting time on the Government radio and television stations. Thecost estimates and financing plan are attached as Appendix 2. The T A will be financed by ADBon a grant basis from the ADB-funded T A Program.

Implementation Arrangements

12. Executing Agencies. MLMUPC will be the Executing Agency for the component to draftimplementing decrees, subdecrees and regulations. The Ministry of Justice (MOJ) will be theExecuting Agency for the training component. MLMUPC and MOJ will be jointly responsible forthe information dissemination component MOJ and MLMUPC will each assign an official, whois at least at the level of department director, as Project director to be responsible for theimplementation of their respective components and jointly responsible for the implementation ofthe information dissemination component The Project directors will jointly head a Project team,to be established prior to commencement of the T A. The team will include staff from relevantdepartments and offices, such as the Personnel and Training Department and the unit fordissemination of information under the Administration and Finance Department of MOJ, andmembers from the existing Working Group on Land Law under MLMUPC. The minister ofJustice, and the minister of Land Management, Urban Planning, and Construction will jointly bein charge of overall TA coordination. The Project team will work closely with the consultantsengaged under the T A and will enable the consultants to carry out their tasks effectively.MLMUPC and MOJ will provide available Govemment documents and data needed for TAimplementation.

13. In implementing the component to draft subdecrees, MLMUPC will coordinate closelywith the MOJ drafting team currently preparing the Civil Code; this to ensure consistencybetween the implementing (sub)decrees under the Immovable Property Law and the system ofthe Civil Code. Depending on the subject matter of the (sub)decree concemed, MLMUPC willalso involve other relevant mini.stries and agencies, including the Ministry of Agriculture,Forestry, and Fisheries; Ministry of Rural Development; and Ministry of Interior. In implementingthe training component, MOJ will closely coordinate with MLMUPC, the Cambodian BarAssociation, and legal aid organizations to ensure participation of the land registry staff,members of the Bar Association and other legal aid providers, in addition to the judiciary, in thetraining program. MOJ will also pursue cooperation with institutes for legal education inCambodia, including the Faculty of Law, to ensure the sharing of training materials andinformation.

14. Selection of Consultants and Procurement.consulting and about 30 person-months of domesticinternational and domestic consultants will be selectedADS's Guidelines on the Use of Consultants and otherengagement of domestic consultants. The consultant~with the Project team, for managing the TA; assistin~training curriculum; developing training materials, ilogistics of the training and delivering the train

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)curement. About 24 person-months of internationalof domestic consulting will be required. A team ofbe selected and engaged by ADB in accordance withis and other arrangements satisfactory to ADB on theconsultants will be responsible, in close cooperation

'A; assisting in drafting (sub)decrees; developing thematerials, induding the benchbook; managing theI the training; and, in association with suitable

.nongovernment organizations, developing and delivering the public information materials, andassisting poor and illiterate people in realizing their rights under the Immovable Property Law.Outline terms of reference for the consultants are attached as Appendix 3. Local resourcepersons with knowledge of and experience in the subject matter will be used in the trainingprogram and the information dissemination program. The resource persons will be selected inconsultation between MLMUPC, MOJ, and ADB. Office equipment (computers, printers, andphotocopier) and training equipment and materials will be procured by the consultants inaccordance with ADB's Guidelines for Procurement.

.

15. T A Evaluation. The consultants will develop an evaluation system to measure theimpact of the training program and the information dissemination program. This system, and inparticular the benchmarks for evaluation, will be set up at the start of TA implementation.

16. Implementation Schedule. The implementation sd1edule depends to some extent onthe timing of the passage of the draft Immovable Property Law by the National Assembly.Nevertheless, drafting of the (sub)decrees can start in advance on the assumption that the basicthrust of the draft law will not change in the parliamentary process and that any revisions cansubsequently be incorporated in the draft (sub)decrees. Similarly, the design of the publicinformation materials can start on this basis. For the training program, the curriculum and thetraining materials can be designed and the trainers who will deliver the course can preparethemselves so that the first course can start as soon as the law is passed. The TA will beimplemented over 24 months.

17. T A Review and Reporting. In the first month of implementation, a T A inceptionmission from ADS will hold a tripartite meeting with MLMUPC. MOJ. and the consultants todiscuss the work program and detailed working arrangements, as well as confirm assignment ofcounterpart staff to the Project Team. Further tripartite meetings will be held about one yearafter commencement of the TA and about two months before TA completion. The consultants- -. - - -- - --after commencement of the TA and about two months before TA completion. The consultantswill prepare inception, midterm, and final reports; the final versions of these will reflect thecomments made by the Government and ADB during the tripartite meetings. In addition, theconsultants will prepare brief progress reports for internal use of ADB and the Government after6 and 18 months of commencement of TA implementation.

IV. . THE PRESIDENrS DECISION

18. The President, acting under the authority delegated by the Board, has approved theprovision of technical assistance, on a grant basis, to the Government of the Kingdom ofCambodia, in an amount not exceeding the equivalent of $600,000 for the purpose ofImplementation of Land Legislation and hereby reports such action to the Board.

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.Taking into account work undertaken under other aid-assisted projects for thedevelopment of benchbooks, prepare a practical guide (benchbook) for use bymagistrates and court personnel on the handling of cases brought to the courts.The guide should be divided into (a) a general part, explaining the role ofmagistrates and court personnel, how to apply the law in general, procedures tofollow, and key skills as well as attitudes required; and (b) a subject-specific part,focusing on the handling of immovable property cases. Liaise with agencies andconsultants working on the development of the Civil Procedure Code and theCriminal Procedure Code to ensure that the guide is consistent with theprocedures to be incorporated in the two codes.

(ii).

(iii) In close cooperation with MOJ,including logistics and preparation

(iv) Propose arrangements for institutionalizing legal and judicial training of practicingmagistrates and lawyers in Cambodia, based on the experience gathered withthe training program.

3. Public Information and Access to Justice

Activities will include the following:

(i) Together with the TA team and in close consultation with the Cambodian BarAssociation and legal aid agencies, prepare a handbook to make the ImmovableProperty Law and related decrees and regulations easily accessible to the legalcommunity and educated nonlawyers. The handbook should provide a glossaryof terms used in the law and a commentary on the law. explaining technical andcomplex provisions, illustrated by examples.

4.

(ii) Design a public infom1ation campaign capable of reaching all segments of thepopulation, including illiterate persons; and develop and produce effectiveinfom1ation materials, including materials suitable for public broadcasting such asvideos and tapes, as well as brochures, posters, and cartoons.

(iii) Implement the public information campaign, through distribution and broadcast ofthe information materials, making use of the local network of NGOs and civilsociety .

(iv) Provide assistance to poor people in asserting their rights under the landlegislation, induding assistance in submitting daims with the land registry officesand assistance in resolving disputes.

4. T A Management

The consultants will undertake the following:

(i) In dose coordination with ADB and the TA team, manage all aspects of theconsulting services. Assist in establishing and maintaining good workingrelationships among all parties involved in implementing the TA, indudingMLMUPC, MOJ, TA team members, the NGO community, and civil society.

11

Appendix 3, page 2

manage all aspects of the training program,of tead1ing materials.

Appendix 3, page 3

Assist in selecting local resource persons and manage their services.

Carry out procurement of equipment and materials to be provided under the T A.

Assist in organizing tripartite meetings and prepare briefing materials for thosemeetings.

(ii)

(iii)

(iv)

(v) Establish a T A impact evaluation sys'commencement of the T A to measure the irrinformation dissemination and access to jusfeedback will be obtained regularly from thethe NGO community, and local communities

ReportsB.

6. The consultants will prepare an inception report within one month of commencement ofthe TA, a midterm report about one year after commencement of the TA, and a final report at TAcompletion. Drafts of the reports will be submitted to ADB and the Government for discussion attripartite meetings with Government representatives, ADB, and the consultants. The final reportswill reflect all comments made by the Government and ADB. In addition, the consultants willprepare progress reports within 6 and 18 months after T A commencement. All reports, exceptfor the inception report, will include (i) impact evaluation updates, including feedback fromtraining course participants, NGOs, and local communities; and (ii) brief descriptions ofassistance rendered to people seeking access to justice and the outcome of the assistance.

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on system, setting benchmarKs at there the impact of the training program and thess to justice program. As part of the system,from the participants of the training courses,l1unities selected on a countrywide basis.

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