Legal Empowerment, Social Movements and
Fostering Equitable Economic Development in Cambodia
Dr. Nandini Ramanujam* and Siena Anstis**
______________________________________________________________________
I. Introduction
Studies suggest that there may be a positive relationship between rule of law 1 and
economic growth. However, it is clear that economic growth happens in countries where
there is a deficit in rule of law and that economic growth can be unequal. 2 In this article,
we accept the premise that rule of law may lead to economic growth and argue that, in
order to secure equitable growth,3 access to justice through the legal empowerment of
the poor must be a key concern of any rule of law reform. In particular, we argue that
social movements play an instrumental role in the empowerment process.4 As access to
* Dr. Ramanujam teaches on issues surrounding the rule of law and economic development and human
rights, at the Faculty of Law, McGill University. She spearheads the Human Rights Internship Program at
the Faculty and is the co-Principal Investigator of the “Rule of Law and Economic Development in Russia”
research project. In 2006, Dr. Ramanujam was appointed executive director with the Centre for Human
Rights and Legal Pluralism at the Faculty of Law, McGill University. She holds a D.Phil Economics
(Oxford), an MA and an M.Phil, Economics. She was President of the Board of Directors of Equitas from
2002 to 2008.
** Siena Anstis is a fourth year law student and research assistant at McGill University. In 2013, she
worked as a Summer Associate with Morrison & Foerster in New York City. She is a former legal intern in
the Appeals Division of the Office of the Prosecutor at the International Criminal Tribunal for the former
Yugoslavia. In 2011, she was a Legal Research Fellow with the Center for International Sustainable
Development Law and completed a summer legal internship with the Cambodian League for the
Promotion and Defence of Human Rights in Phnom Penh, Cambodia. Siena will be clerking at the Court
of Appeal for Ontario in 2014.
1
For a concise summary of the history of rule of law and its relationship to development, see Okezie
Chukwumerije, “Rhetoric Versus Reality: The Link Between the Rule of Law and Economic Development”
(2009) 23 Emory International Law Review 383 at 383-399 [Chukwumerije].
2
Joseph Stiglitz, “More Instruments and Broader Goals: Moving Toward the Post-Washington
Consensus” (Lecture delivered at the WIDER Annual Lecture, Helsinki, Finland, 1998) 1 at 30 [Stiglitz];
ibid. at 398.
3
Equitable growth in our article can be understood in three ways. First, we mean distributive growth, i.e.
growth that is not simply funneled into the hands of elites. Second, we do not define growth itself by gross
domestic product (GDP). Rather, Human Development Indicators (HDI) and whether economic growth is
resulting in the improvement of living conditions of a majority of the population concern us. Third, we
consider equitable growth as requiring equal access to the institutions and processes that provide
protection to property rights.
4
The first wave of the rule of law and development movement failed to appreciate the fact that the law
could be used for anti-development ends, “especially when commandeered by elites and channeled
towards the consolidation of personal power” (Chukwumerije, supra note 1 at 394). Tamanaha
comments: “When the state is captured by authoritarian groups, law seen in primarily instrumental terms
cannot serve as a restraint. Lacking its own internal values or goals, law will become an instrument of
those who control and set the goals of the state” (Chukwumerije, ibid.). The legal empowerment model
Canadian Journal of Poverty Law
justice and legal empowerment fall within the framework of rule of law reform discourse,
we first consider the various definitions of rule of law and assess to what degree
economic growth can be attributed to the establishment of rule of law. Second, we look
at the notion of access to justice as an integral part of rule of law and the role of access
to justice in economic growth. Third, we provide a concrete example of how legal
empowerment and social movements can help secure access to justice using land
disputes in Cambodia as a case study. In particular, we consider how legal
empowerment is necessary in order for economic growth in the country to be equitable,
rather than concentrated in the hands of an elite. We examine in more detail the
framework for land rights in Cambodia and the types of challenges faced by Cambodian
communities in mounting a social movement against land evictions. In light of our
findings, as well as Amartya Sen’s conception of justice,5 we provide recommendations
aimed at strengthening Cambodian social movements and facilitating legal
empowerment.
II: Rule of law and its impact on economic growth
a) Formal and substantive definitions of rule of law
Rule of law is an “exceedingly elusive notion.”6 The flexibility and intangibility of rule of
law is illustrated in its universal endorsement.7 A highly malleable concept, definitions of
rule of law lie on a spectrum between thin and thick understandings.8 The key difference
between these definitions is that the former is not concerned with what the law actual
says. It is primarily concerned with whether basic procedural requirements are met. The
latter incorporates the requirements of the thin definition, but it also includes democracy
and the protection of individual rights.9
Lon Fuller’s thin definition requires that laws “must exist and those laws should be
obeyed by all, including government officials,” “laws must be published” and be
reasonably clear, and “official action should be consistent with the declared rule.”10
Similarly, Joseph Raz wrote that rule of law required that “laws should be prospective,
addressed in this article, as well as the focus on social movements as a means to secure access to
justice, is one way to address this challenge.
5
Amartya Sen, The Idea of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 2009)
[Idea of Justice].
6
Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University
Press, 2004) at 3 [Tamanaha].
7
Tamanaha writes that the rule of law has been “endorsed by government heads from a range of
societies, cultures, and economic and political systems” including China, Russia and Zimbabwe, all
countries which have largely failed to implement the rule of law (Tamanaha, ibid. at 2).
8
For a detailed analysis of these definitions see Tamanaha, ibid. at 93-113.
9
Ibid. at 102, 110.
10
Ibid. at 93; Lon F. Fuller, The Morality of the Law (Yale: Yale University Press, 1969) at 39.
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accessible, clear and stable; the judiciary must be independent and law-making must be
guided by open, stable, clear and general rules.”11 The thinnest understanding of this
type of rule of law is “rule by law”12 where laws are passed and promulgated but the
State does not behave as if it is subject to these laws.13
A thick definition of rule of law goes beyond these basic requirements and considers the
actual substance of the law. It is concerned with “liberty and democracy,” whether laws
protect basic freedoms and whether the powers of the State are effectively
constrained.14 Thus, if one considers individual rights and freedoms to form a key
component of the rule of law, a thin definition does limited work.15
In this article, while we acknowledge that a thinner conception of rule of law has the
advantage of achieving a wider consensus,16 we believe that a more robust conception
of the rule of law is necessary in the context of ensuring equitable growth. A thin
definition does not prioritise individual rights.17 This is a concern because our definition
of equitable economic growth goes beyond an increase in GDP. It is also based on a
11
Chukwumerije, supra note 1 at 404.
Randall Peerenbom deconstructs the notion of rule of law and rule by law in the context of China. See
Randall Peerenboom, China’s Long March Toward Rule of Law (Cambridge: Cambridge University Press,
2002).
13
Tamanaha, supra note 7 at 92. However, authors disagree as to whether a thin definition can qualify as
rule of law and the notion remains controversial. For example, Adriaan Bedner believes that rule of law is
meant to constrain the power of the state and, consequently, where a State acts like it is above the law,
there is no rule of law. For more information, see Adriaan Bedner, “An Elementary Approach to Rule of
Law” (2010) 2 Hague Journal on the Rule of Law 38 at 50. Chukwumerije writes that the thin definition of
the rule of law is concerned with “the use of the law as a restraint on the exercise of arbitrary power and
as a guide to human behavior” which also suggests that a State acting above the law cannot be abiding
by the rule of law (Chukwumerije, supra note 1 at 400).
14
The Economist, “Economics and the rule of law: order in the jungle” The Economist (13 March 2008),
online: The Economist <http://www.economist.com/node/10849115> [Order in the jungle].
15
Chukwumerije argues that “while substantive justice is not inherent in the narrow conception of the rule
of law, this conception does not preclude the pursuit of ends of substantive justice through the legal
process” (Chukwumerije, supra note 1 at 405). Thus, the thin definition of rule of law is not entirely
divorced from human rights and basic freedoms. However, one can still argue that the thin definition of
the rule of law is compatible with gross rights violations, provided the law is enforced according to the thin
definition’s procedural requirements.
16
Benefits of this definition of the rule of law include “the restraint it places on the exercise of state power;
the certainty and predictability it brings to legal relations; the maintenance of social order through the
subordination of both the state and individuals to the dominion of the law; the promotion of social
interaction through predictable formal norms; and the promotion of procedural justice” (Chukwumerije,
supra note 1 at 405). A thin approach to rule of law in development programs does not require valuejudgments on whether laws respect individual rights. As Chukwumerije writes, a thick definition of the rule
of law “may result in dilution of the doctrine’s rhetorical power and practical resonance” (Chukwumerije,
ibid. at 412-413). David and Trebilcock also observe that a variety of socio-cultural arrangements are
compatible even where the institutions themselves vary widely and thus the end goal of rule of law can be
achieved in multiple contexts. See Kevin E. Davis and Michael Trebilcock, “The Relationship Between
Law and Development: Optimists Versus Skeptics” (2008) New York University Law and Economics
Working Papers 1 at 25.
17
Chukwumerije, supra note 1 at 406-407.
12
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conception of development, which include personal capabilities.18 Our emphasis on a
substantive version of the rule of law is based on the argument that successful social
movements, characterized by the type of activities pursued by Cambodian grassroots
activists, as discussed in our case study, requires a functioning democracy, nonrepressive laws and the protection of fundamental freedoms.19 Thus, any overarching
rule of law program, which is concerned with equitable growth and encompasses
access to justice and legal empowerment, must move beyond the orthodox definition of
rule of law to one that is concerned with individual rights.
b) Economic growth and a thin definition of the rule of law
Thomas Carothers divides rule of law reform, based on a thin definition, into three
categories.20 First, such reforms involve revising the laws themselves, generally
business and criminal laws.21 Second, institutions enforcing compliance with the law are
reformed. This involves technical and ethical training for the prisons, police and
judiciary.22 Third, measures are taken to push the government to comply with these
reforms.23 As illustrated in Cambodia, this is possibly one of the most challenging
steps.24
With this framework in mind, it is necessary to consider what effect these reforms may
have on economic growth. The rule of law has been considered a panacea for poor
economic growth.25 As Tamanaha says, “Development specialists uniformly agree that
absent the rule of law there can be no sustainable economic growth.” 26 Chukwumerije
identifies three pillars to this argument.27 First, rule of law provides a “secure
environment” where investments, property, contracts and transactions are protected. 28 If
18
As Chukwumerije notes, “the narrow conception of the rule of law is not concerned with the realization
of the broad developmental objectives advocated by scholars like Amartya Sen.” Sen has defined
development as individual freedom which extends to “political freedom and civil rights; economic freedom,
including the availability of credit; social opportunities, including availability of health care, education and
social services; and protective security, including unemployment benefits and emergency relief”
(Chukwumerije, ibid. at 406-407).
19
See Siena Anstis, “Using Law to Impair the Rights and Freedoms of Human Rights Defenders: A Case
Study of Cambodia” (2012) 4:3 Journal of Human Rights Practice [Anstis].
20
Thomas Carothers, “Rule of Law Revival” (1998) 77:2 Foreign Affairs 3 at 7 [Carothers].
21
Ibid. at 7.
22
Ibid.
23
Ibid. at 11.
24
Ibid. at 7-8.
25
Tamanaha, supra note 7 at 2; Order in the Jungle, supra note 14.
26
Tamanaha, ibid. at 2.
27
Chukwumerije, supra note 1 at 416-418.
28
Tamanaha, supra note 7 at 2; Brian Tamanaha, “A Concise Guide to the Rule of Law” (2007) St. John’s
University: Legal Studies Research Paper Series 2 at 11 [Concise Guide to the Rule of Law]; Stephan
Haggard, Andrew MacIntyre, and Lydia Tiede, “The Rule of Law and Economic Growth” (2008) 11 Annual
Review of Political Science 205 at 207 [Haggard]; Chukwumerije, supra note 1 at 383, 414; Daniel A.
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contracts are enforceable, investors will be more willing to enter into them knowing that
there is recourse in case of breach.29 The protection of property ensures that an
investment is secure.30 Additional rule of law reforms mentioned above such as
reforming laws to make them business-friendly (for example, by reducing the number of
steps required to incorporate a company) are also likely to attract more investors.31
Second, a policy environment which operates hand in hand with the rule of law sets
fixed ground rules which allow economic actors to predict how other economic actors
are going to behave.32 The power of the State to act coercively or to exercise arbitrary
power interfering with business is curbed. 33 Third, the rule of law provides the stability
necessary to engage in business.34
However, in practice, rule of law and economic growth are not necessarily so neatly
related. Economic growth happens in a variety of contexts35 and a number of factors
can influence whether economic growth takes place.36 Chukwumerije and Posner
critique these three pillars. They argue that a thin definition of the rule of law does not
guarantee that the content of the laws are geared towards economic growth, because,
for example, one can have clear and accessible laws that undermine economic
efficiency37 and that the focus on creating stability in business relations means that the
role of informal norms are often forgotten.38 Additionally, studies have shown that
investors are not necessarily as concerned with whether elements of the rule of law, like
Farber, “Rights as Signals” 31:1 The Journal of Legal Studies 83 at 88. For more information on whether
growth is contributing to human capabilities, see Peter Boettke & J. Robert Subrick, “Rule of Law,
Development, and Human Capabilities” (2003) 10 Supreme Court Economic Review 109 at 113.
29
Concise Guide to the Rule of Law, supra note 29 at 11.
30
Ibid. at 11; Stephen Haggard & Lydia Tiede, “The Rule of Law and Economic Growth: Where Are We?”
(2011) 39:5 World Development 673 at 674 [Tiede].
31
Concise Guide to the Rule of Law, ibid. at 12.
32
Chukwumerije, supra note 1 at 417.
33
Chukwumerije, ibid. at 417; Tiede, supra note 30 at 674.
34
Chukwumerije, ibid. at 418.
35
As Douglass North said, “transferring the formal political and economic rules of successful Western
economies to third-world and Eastern European economies is not a sufficient condition for good
economic performance.” See Douglass North, “The New Institutional Economics and Development”
(1994), online: IDEAS <http://ideas.repec.org/p/wpa/wuwpeh/9309002.html> 1 at 7 [North].
36
Chukwumerije argues that “rule of law reform should be approached as part of a broader strategy for
stimulating economic growth in the large part of the world that has been struggling with the problem of
economic deprivation” (Chukwumerije, supra note 1 at 388).
37
For example, consider that China attracts more foreign direct investment than Brazil, Russia and India
suggesting that business-friendly regulations may be more important than sound institutions or the
protection of legal rights. For more information, see World Bank, “Foreign direct investment, net inflows”
online: World Bank < http://data.worldbank.org/indicator/BX.KLT.DINV.CD.WD>. Also see Richard A.
Posner, “Creating a Legal Framework for Economic Development” (1998) 13:1 The World Bank Research
Observer 1 at 2 [Posner].
38
Chukwumerije, supra note 1 at 421-422; Posner writes that “It is plausible, at least, that when law is
weak or nonexistent, the enforcement of property and contract rights frequently depends on the threat
and sometimes the actuality of violence, on family alliances that may be dysfunctional in the conditions of
a modern economy, and on cumbersome methods of self-protection” (Posner, ibid. at 3).
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an independent judiciary, are established.39 Finally, rule of law reforms will not
necessarily guarantee that wealth is evenly distributed.40
A study of the BRICs illustrates that the relationship between rule of law and economic
growth is hard to define.41 Economic growth happens at great rates in countries with
poor rule of law rankings. Brazil, China, Russia and India, for example, consistently
score middle to low rankings on the World Justice Project Rule of Law Index.42 The
index covers categories like limits on government powers, absence of corruption, order
and security, fundamental rights, effective regulatory enforcement, access to civil justice
and effective criminal justice.43 At the same time, the GDP of these countries in 2010
grew annually between 4.0 and 10.4 per cent.44
Countries like Sierra Leone and Nigeria also have high GDP growth rates, while facing
significant problems in strengthening rule of law. Sierra Leone and Nigeria have two of
the highest expected annual GDP growth rates worldwide for 2012 at 27.4 per cent and
21.2 per cent respectively.45 Sierra Leone is still a country in post-conflict recovery,
struggling to establish dependable institutions to enforce the rule of law. 46 Nigeria
consistently ranks at the bottom of the Rule of Law Index.47
High aggregate growth rates in countries riddled with corruption also make this
relationship hard to define. Corruption, which undermines rule of law, is generally
39
Chukwumerije, ibid. at 423.
This was one of the key problems with the second rule of law and development movement which was
based on a neo-liberal economics model advocating State non-interventionism in the marketplace. The
second movement “operated on the premise that only through private enterprise and the practice of the
free market, anchored by the rule of law, could societies escape poverty.” Chukwumerije criticizes this
approach and notes the lack of concern for “the redistribution, of economic wealth.” He continues,
“Economic growth does not invariably lead to poverty alleviation. A wealthy society may have a
substantial percentage of people living in poverty because the wealth created in the society may be
concentrated in the hands of a few” (Chukwumerije, ibid. at 398). For more information, also see Stiglitz,
supra note 3 at 30-32.
41
World Justice Project, “Rule of Law Index” (2011), online: World Justice Project
<http://worldjusticeproject.org/rule-of-law-index/> at 28 [Rule of Law Index]; Dr. Nandini Ramanujam,
(Principal Investigator), Mara Verna, Julia Betts (Senior Researchers), Marcus Moore & Kuzivakwashe
Charamba (Researchers), “Rule of Law and Economic Development in Russia: A Comparative Approach
Towards Sustainable Economic Growth Across the BRICs” (2012), online: McGill University
<https://www.mcgill.ca/roled/> [Ramanujam].
42
Rule of Law Index, supra note 41 at 28.
43
Ibid. at 28.
44
World Bank, “Cambodia: World Development Indicators” online: World Bank
<http://data.worldbank.org/country/cambodia#cp_wdi> [World Development Indicators].
45
Luca Ventura and Tina Aridas, “Countries with the highest GDP growth 2002-2012” Global Finance
(2012) online: Global Finance <http://www.gfmag.com/tools/global-database/economic-data/10304countries-with-the-highest-gdp-growth-2000-2010.html#axzz1xGjFugeW>.
46
Human Rights Watch, “Sierra Leone” (2011), online: Human Rights Watch <http://www.hrw.org/worldreport-2011/sierra-leone>.
47
Rule of Law Index, supra note 41 at 81.
40
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considered to have a detrimental effect on economic growth. However, centralised
corruption can provide the stability required for economic growth.48
The Economist underlines the difficulty of finding a causal link between rule of law and
economic growth. “The connection [of rule of law] with wealth is well established but that
is different: it has been forged over decades, even centuries.” However, the article
argues that the link with short-term growth is harder to see. China is a clear
contradiction. The country is growing fast and is the world’s largest recipient of foreign
investment, yet has high levels of corruption and substantially falls short of Western,
liberal democratic understanding of a rule-of-law tradition.49 At the same time, “there is
surely a connection between legal reforms carried out in central Europe and the Baltics
and their fast growth rates.”50
Overall, despite these uncertainties, studies are “surprisingly consistent” in finding that
rule of law is “necessary, but by no means sufficient” for sustained economic growth. 51
Randal Peerenboom suggests that the relationship is a two-way street. “Rule of law is to
some extent, a function of demand.”52 He continues, “economic reforms and
development enhance the demand for rule of law, while legal reform and rule of law
contribute to economic development.”53
The relationship between rule of law and economic growth has been challenged by New
Institutional Economics (NIE).54 Chukwumerije argues that only when well functioning
informal and formal institutions are coupled with a healthy climate of rule of law can
there be “discernible benefits on economic prosperity.”55 NIE focuses on the “humanely
devised constraints that structure human interaction.”56 This includes both formal and
informal constraints.57 This approach “requires looking beyond the rule of law in
searching for the kinds of reforms that would stimulate economic development.”58 Thus,
NIE may help us develop a better understanding of the informal economy and how
social norms affect economic behavior and rule of law reforms in a given community.
48
Haggard, supra note 28 at 212; Alan Heston & Vijay Kumar, “Institutional Flaws and Corruption
Incentives in India” (2008) 44:9 Journal of Development Studies 1243 at 1257; Ramanujam, supra note
43 at 153.
49
Order in the Jungle, supra note 14.
50
Ibid.
51
Randal Peerenboom, “Human Rights and Rule of Law: What’s the Relationship?” (2005) 36
Georgetown Journal of International Law 43 at 45 [Peerenboom].
52
Ibid. at 52.
53
Ibid.
54
North, supra note 35; Douglass North, “Institutions” (1991) 5:1 Journal of Economic Perspectives.
55
Chukwumerije, supra note 1 at 388.
56
Ibid. at 427.
57
Ibid.
58
Ibid. at 428.
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c) Economic growth and a thick definition of the rule of law
The relationship between substantive equality and human rights, contained in a thick
definition of the rule of law, and economic growth is also contested. Analysis of this
relationship has focused on whether human rights should be prioritised above thin forms
of rule of law reform, and whether human rights precedes economic development.
Posner argues that while legal reform is important, developing countries should
prioritise “creating substantive and procedurally efficient rules of contract and property
rather than … creating a first-class judiciary or an extensive system of civil liberties.”59
His arguments underline the cost of enforcing such a system: countries where
developing such a judiciary is expensive should focus legal reform programs on
substantive and procedural rules.60
Farber, however, argues that protecting human rights indirectly foster growth by
attracting investments.61 A government which protects human rights shows itself as
“willing to sacrifice short-term advantages to obtain long-term benefits such as
economic growth.”62 Investors can then “infer” that the “government is less likely to pose
a threat of opportunistic behaviour.”63 Human rights can also create a “reputational risk”
and that international companies may be dissuaded from investing in the Cambodian
marketplace due to a lack of stability and predictability caused by a crackdown on
human rights.64 Surya P. Subedi, the United Nations Special Rapporteur for Cambodia,
quotes the Chief Executive Officer of a company in Cambodia who confirmed “social
risks tend to be a bipolar event, wherein a company will simply deem a market too risky
to consider investment, even at high rates of financial return.”65 Respect for human
rights may also encourage specific types of investment.66 Ultimately, however, human
rights abuses are unlikely to deter a specific set of major investors who do not face an
59
Posner, supra note 37 at 9.
Ibid. at 7.
61
Farber, supra note 28 at 98.
62
Ibid.
63
Ibid.
64
Surya P. Subedi, Report of the Special Rapporteur on the Situation of Human Rights in Cambodia: A
st
Human Rights Analysis of Economic and Other Land Concessions in Cambodia, 21 Session,
A/HRC/21/63/Add.1 (2012) at para. 136 [Subedi, Land Concessions].
65
Ibid.
66
For example, a strong human rights record may attract “impact investors.” Investors put money into
organizations or business designed to have an impact on poverty while expecting a below market level on
returns (See Kevin Starr, “Impact investing: The trouble with impact investing: P1” (24 January 2012),
online: Stanford Social Innovation Review
<http://www.ssireview.org/blog/entry/the_trouble_with_impact_investing_part_1> .
60
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immediate threat of reputational risk. China, for example, continues to spend significant
sums in countries where human rights are regularly undermined.67
Overall, the relationship between rule of law and economic growth remains
controversial. Figures suggest that economic growth happens outside a thin rule of law
framework. Additionally, a thick rule of law does not necessarily lead to economic
growth. However, as we argue in this article, adopting a thick definition of the rule of law
is necessary for the implementation of legal empowerment programs designed to
support equitable economic growth. As we discuss in our case study, thin rule of law
reforms in Cambodia may attract investors and facilitate the protection of their legal
rights, but unless such reforms also protect basic rights and freedoms (namely,
economic and personal security, the freedom of speech and association of activists),
legal empowerment programs designed to help communities mobilize for their rights will
be neutralized. Activists will be prevented from claiming their property rights in court, or
through other informal mechanisms, and developments in rule of law reform could end
up primarily benefiting a narrow category of foreign investors.
d) New Institutional Economics (NIE)
While not addressed in further detail in this article, the case study we present on
Cambodia further on suggests that insights gained from the NIE analysis of economic
development68 are critical to understanding the link between rule of law and equitable
economic growth, than a simplistic focus on rule of law.69 Property rights are at the core
of the NIE model70 and, as this case study demonstrates, protecting property rights
through the provision of access to justice is important in securing equitable growth in
Cambodia. Additionally, NIE focuses on informal means of organization and
communication.71 This is also at the foundation of the legal empowerment model, which,
we argue, should value social movements and their capacity to generate sustainable,
community-centered change. One of the most important take ways from NEI is primacy
67
China’s fourth most important trading partner is the Democratic Republic of the Congo, a country where
human rights violations are rampant. For more information, see Asenath Mutumbi, “China, Africa and
human rights” (March 2008), online: Waging Peace
<http://www.wagingpeace.info/index.php?option=com_content&view=article&id=95:05-march-2008-wpreport-qchina-in-africathe-human-rights-impactq&catid=16:darfur-campaign-updates&Itemid=29> 1 at 12.
68
For a more in-depth examination of the role of institutions in economic development in Brazil, Russia,
India and China see Ramanujam, supra note 43 at 65.
69
However, because social movements require a non-repressive framework in which to take place, the
protection of individual rights remains a concern regardless of the framework. The content of laws
passed, and their effect on basic freedoms and human rights, is central to the effectiveness of the legal
empowerment model.
70
Chukwumerije, supra note 1 at 430; North, Douglass. Institutions, Institutional Change, and Economic
Performance (Cambridge: Cambridge Univ Press, 1990).
71
Chukwumerije, ibid. at 428-429.
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of embedded institutions and norms, which are the socio-cultural foundations of a
society.72 The formal institutions must reflect the attributes of the local norms and
practices. In the case of Cambodia, we argue that the Khmer Rouge regime completely
destroyed these embedded institutions, which has prevented new formal institutions
from establishing legitimacy and connections with Cambodian society.
III: Access to justice and its relationship to rule of law and economic growth
a) Defining ‘justice’
Understanding ‘access to justice’ requires first defining what justice is. John Rawls
defined justice as a situation where actors, behind “a veil of ignorance” rendering all
parties equal, determined the principles of the institutions governing their social
relations.73 His institution-focused theory led to two central principles: First, each person
has the right to the same liberties as those received by others. Second, if there are to
be social and economic inequalities, they must be attached to offices predicated on fair
and equal hiring and must be advantageous to the worse-off.74 This vision of justice is
distributive and allows for inequalities provided they benefit the most disadvantaged.
An alternative understanding of access to justice is presented by Amartya Sen. Unlike
Rawls, Sen does not place institutions at the centre of his theory. Sen’s conception of
justice is centred around behaviour of people in society and with the “actual realisations
and accomplishments” of the individual.75 He recognises that “different reasonable
principles of justice” exist.76 Sen’s focus on process of achieving justice makes his
conception particularly relevant for our analysis. Sen emphasises this notion of “open
impartiality” which encourages a consideration of the opinions of “unbiased and
unprejudiced” actors.77 His approach is remarkable for its underlying focus on pluralism
in the process of understanding what is just.78 A similar tolerance is illustrated in Sen’s
“capabilities approach” to development which considers whether a person has the
“capability” or the “freedom to achieve” various lifestyles” rather than just measuring
whether that person has met certain arbitrarily set standards of health or education.79
72
North, supra note 35.
John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971).
74
Ibid.
75
The Idea of Justice, supra note at 5.
76
Steven Poole, “The idea of justice by Amartya Sen” The Guardian (7 November 2009) online: Guardian
Unlimited <http://www.guardian.co.uk/books/2009/nov/07/amartya-sen-justice-book-review>.
77
Idea of Justice, supra note 5 at 144.
78
Ibid. at 46-47.
79
Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 1999). Also see Thom
Ringer, “Development, Reform, and the Rule of Law: Some Prescriptions for a Common Understanding of
the “Rule of Law” and its Place in Development Theory and Practice” (2007) 10:1 Yale Human Rights and
Development Law Journal 178 at 200.
73
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To understand these definitions of justice in practice, one could look to justice as
defined by human rights activists in our case study. Interviews conducted for this case
study embody both definitions of justice. Cambodian activists interviewed in Phnom
Penh emphasise the importance of institutions themselves, as well as the process of
achieving justice. They consider justice as being delivered through institutions like the
judiciary or the Cadastral Commission, a body meant to resolve disputes over land in
the country.80 However, their primary complaint is about the process of justice, which
favours the rich and powerful, rather than the type of institution administering justice.81
Injustice is closely linked with the unequal delivery of services. Thus, in this case study,
access to justice is a blend of Rawls’ and Sen’s theories and constitutes access to
institutions or problem-solving bodies through a process that treats all plaintiffs equally.
b) Does access to justice matter?
Like rule of law, access to justice has multiple meanings. Access to justice can be
approached from an institutional perspective, for example, by focusing on the
establishment of traditional institutions like the judiciary. Access to justice may focus on
the accessibility of alternative or informal means to enforce rights.82 It can also be
considered from the viewpoint of investors seeking to enforce their rights, or from the
viewpoint of the poor who are seeking to do the same, but from a disadvantaged
position.
In the following section, we briefly define access to justice and consider its relationship
to rule of law and economic growth. Our main argument is that access to functioning
institutions, like a judiciary, may promote economic growth. However, this growth may
not be equitable. The legal empowerment of the poor is an important goal by which to
achieve equitable economic growth that respects the rights and property of all parties.
We argue that popular resistance in the context of this case study should be used as a
tool of legal empowerment.
80
Interview of Moses Ngeth, Communications Coordinator with the Cambodian Center for Legal
Education in Phnom Penh, Cambodia (19 September 2011) [Ngeth].
81
Ngeth, ibid. Interview of Chamnan Suy, Communications Coordinator of LICADHO in Phnom Penh,
Cambodia (2 October 2011) [Suy]; LICADHO, Briefing Report, “Human Rights in Cambodia: The charade
of justice” (December 2007), online: LICADHO <http://www.licadhocambodia.org/reports/files/113LICADHOReportCharadeJustice07.pdf> 1 at 18 [Charade of Justice];
Interview of Mathieu Pellerin, Human Rights Abuses Monitoring Consultant with LICADHO in Phnom
Penh, Cambodia (13 October 2011) [Pellerin].
82
Ideally, access to justice would require a mix of formal and informal institutions. The development of
formal institutions is expensive and even developed countries struggle in providing access to civil justice.
See Rule of Law Index, supra note 41 at 21.
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i. Defining ‘access to justice’
Yash Ghai divides access to justice into thin and thick definitions. A thin definition of
access to justice focuses on “the courts and other institutions of administering justice,
and with the process whereby a person presents her case for adjudication.”83 This
definition, which is consistent with a thin understanding of rule of law, could also be
called the “supply side” of access to justice.84 Formalistic access to justice reform is
aimed at ensuring that there are functional institutions to adjudicate disputes. A thick
definition of access to justice is concerned with “the process of law-making, the contents
of the law, the legitimacy of the courts, alternative models of legal representation and
dispute settlement.”85 This definition, which is consistent with a thick definition of rule of
law, looks at the substance of the law in addition to the procedural safeguards. This
could be termed the “demand side” of access to justice, which aims to facilitate the use
of courts.86
ii. Access to justice and its relationship to rule of law and economic growth
Access to justice is a central component in both the thin and thick definitions of rule of
law.87 Unless individuals can assert their property and contractual rights in a court, or
through another process or institution, there are no means to challenge behaviour that
interferes with promulgated laws.88 At minimum, everyone should have meaningful
access to processes or institutions designed to enforce laws fairly. If a community is too
marginalised to access such bodies, or is treated differently than other actors, ‘access
to justice’ becomes meaningless and a key aspect of rule of law is absent.
While access to justice plays an integral part in even a minimalist definition of the rule of
law, there is no conclusive evidence of whether there is a positive relationship between
this subset of rule of law and economic growth. NIE suggests there is such a
relationship and that the development of institutions to enforce written contracts, for
83
Yash Ghai & Jill Cottrell, “The Rule of Law and Access to Justice” in Yash Ghai and Jill Cottrell eds,
Marginalized Communities and Access to Justice (New York: Routledge, 2010) 1 at 3 [Access to Justice].
84
Ibid. at 5.
85
Ibid. at 4.
86
Access to Justice, supra note 83 at 5.
87
For example, Raz considered access to justice an important component of the rule of law. See Joseph
Raz, The Rule of Law and Its Virtue in The Authority of Law: Essays on Law and Morality (1979) at 210229.
88
Paul Craig, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework” (1997)
Public Law at 470 [Craig]. Dicey, cited in Craig, wrote: “We mean … when we speak of the ‘rule of law’ as
a characteristic of our country, not only that with us no man is above the law, but (what is a different thing)
that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunals” (Craig, ibid. at 472).
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example, was at the heart of Europe’s economic development.89 Klerman writes that
while the relationship between “judicial independence and effective courts” is generally
seen as “good for economic growth,” this correlation is still contested.90 He states that
“economic theory generally supports the idea that judicial independence, and more
generally, high quality courts, facilitate economic growth.”91 The underlying logic of this
relationship is the same as that between rule of law and economic growth. Fair and
impartial asset protection encourages investment.92 The means of enforcing property
and contractual rights need not be done solely through the courts. Other informal
mechanisms, or other types of institutions, may play a role.93
However, Klerman also writes that this relationship may, like rule of law and economic
growth, be a two-way street. Economic growth can start without access to courts or
other institutions through “government restraint and reputational enforcement” and may
then spur improvements in the judicial system.94 Initially, investors’ assets may be
protected through informal means including, for example, purchasing protection from a
corrupt government. This suggests that rule of law and access to justice may not
necessarily be integral to economic growth.
Overall, it is hard to definitively determine whether there is a relationship between rule
of law, access to justice and economic growth from existing literature and studies. The
case study we present further on suggests that if there is such a relationship, a
definition of access to justice that includes legal empowerment and social movements
as a core component will be necessary to ensure that growth does not favour
entrenched elites and leads to equitable development. In particular, non-traditional
approaches to the promotion of access to justice will be necessary to secure reforms
that ensure that the poor have the means to enforce their rights. Ultimately, if access to
justice is limited to foreign companies or powerful politicians, marginalized communities
will remain disadvantaged.
89
Menard, Claude & Mary M Shirley. “The contribution of Douglass North to New Institutional Economics”
(21 June 2011), online: < http://hal.inria.fr/docs/00/62/42/97/PDF/2011--Menard_Shirley_North_and_NIE-CUP.pdf>.
90
Daniel Klerman, “Legal Infrastructure, Judicial Independence and Economic Development” USC Legal
Studies Research Paper No. C06-1 at 1 [Klerman].
91
Ibid. at 1.
92
Ibid. at 1-2.
93
Ibid. at 2-3.
94
Ibid. at 3.
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Canadian Journal of Poverty Law
IV: Economic growth for whom? A case study on the importance of legal
empowerment and popular resistance in Cambodia95
This case study focuses on access to justice in the context of land disputes in
Cambodia. It is intended to illustrate the arguments we have considered above. Namely,
we argue that rule of law reform should incorporate legal empowerment and support for
social movements as necessary tools in securing meaningful access to justice and
ensuring equitable economic growth. While a thin rule of law definition, and associated
reforms, can arguably help secure the contractual and property interests of foreign
investors, it is not necessarily sufficient to protect communities vulnerable to the
arbitrary behaviour of the government. In this next section, after reviewing the political
and economic context, we discuss the development of access to justice programs in
Cambodia and their relevance to on-going land disputes. This discussion illustrates how
important grassroots organizing and the creation of a resilient social movement in order
to strengthen access to justice can help further economic growth in way that ensures
that a plurality of interests are protected.
a) Context
i. Political Context
On April 17, 1975, the Khmer Rouge, followers of the Communist Party of Kampuchea,
conquered Cambodia’s capital city, Phnom Penh.96 They expelled most of the city’s
residents to the countryside and forced people into organised labour forces. The Khmer
Rouge eliminated most of the country’s intellectual class.97 Suspicion from within the
party subsequently led to the slaughter of Khmer Rouge soldiers and leaders,
95
The findings in this case study are based on research conducted by the authors in Cambodia while she
completed a legal internship with LICADHO, as well as through interviews conducted with Cambodian
activists. Where available, other sources are indicated to substantiate these claims. A recent report by
Surya Subedi, the United Nations Special Rapporteur for Cambodia, provides important insight into the
human rights effects of land rights abuses in Cambodia (Subedi, Land Concessions, supra note 64). As
Subedi notes though, there is a veritable dearth of information on land rights claims and issues in
Cambodia (paras. 87-92 and 201-205). Furthermore, community efforts are often done informally and
usually only reported through newspapers and radio stations, or advocacy groups.
96
US Department of State: Bureau of East Asian and Pacific Affairs, “History of Cambodia” (2012),
online: US Department of State <http://www.state.gov/r/pa/ei/bgn/2732.htm#history> [US Department of
State]; BBC, “Cambodia Profile” (2013), online: <http://www.bbc.co.uk/news/world-asia-pacific13006828>; Cambodia Tribunal Monitor, “Historical Overview of the Khmer Rouge” (2013), online:
<http://www.cambodiatribunal.org/history/khmer-rouge-history>.
97
BBC, “Cambodia’s brutal Khmer Rouge regime” (2007), online <http://news.bbc.co.uk/2/hi/asiapacific/7002629.stm>.
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particularly those seen as being involved with Vietnam.98 An estimated 1.7 million
people died during the regime.99
Tensions between Vietnam and Cambodia escalated and eventually peaked in 1978,
when the Vietnamese invaded Cambodia to depose the Khmer Rouge. A number of
Khmer Rouge defects aided this invasion, including Hun Sen, a former Khmer Rouge
member and now Cambodia’s Prime Minister. In January 1979, the new People’s
Republic of Kampuchea (PRK) was formed with Heng Samrin as head of state. Hun
Sen became the PRK’s Foreign Minister and was elected Chairman of the Council of
Ministers and eventually Prime Minister in 1985.100
The unpopular Vietnamese army remained in Cambodia fighting the Khmer Rouge and
supporting its puppet regime, the PRK, until 1989. In 1991, in an effort to end instability
and war in Cambodia, the Paris Peace Agreements were signed and United Nations
Transitional Authority in Cambodia or UNTAC was put in charge of the country’s
peaceful transition towards democratic elections.101
The country’s first elections since the Khmer Rouge era were held in 1993. Hun Sen
contested this election, and a coalition government was formed with Hun Sen and
Prince Ranariddh, the head of another political party, as Co-Prime Ministers.102 Three
elections, often marred by violence, followed in 1998,103 2003,104 and 2008.105 Hun
Sen’s party secured a majority in the 2008 elections after an amendment allowing a
majority government to be formed with 51 per cent of seats in the National Assembly
rather than 75 per cent.106
98
Evan Gottesman, Cambodia After the Khmer Rouge (New Haven & London: Yale University Press,
2003) at 27-29 [Gottesman].
99
Ben Kiernan, “The Demography of Genocide in Southeast Asia: The Death Tolls in Cambodia, 197579, and East Timor, 1975-80” (2003) 35:4 Critical Asian Studies 686 at 586.
100
US Department of State, supra note 96.
101
Surya Subedi, “The UN Human Rights Mandate in Cambodia: The Challenge of a Country in
Transition and the Experience of the Special Rapporteur for the Country” (2011) 15:2 The International
Journal of Human Rights 249 at 253 [Subedi]; Surya P. Subedi, Report of the Special Rapporteur on the
Situation of Human Rights in Cambodia, 18th Session, A/HRC/18/46 (2011) at para. 3.
102
LICADHO, “History of Cambodia” (June 10 2011), online: LICADHO <http://www.licadhocambodia.org/cambodia.php>.
103
Ibid.
104
Ibid. Peter Leuprecht, Report of the Special Representative of the Secretary-General for Human
Rights in Cambodia: Situation of Human Rights in Cambodia, ESC, 16th Sess, E/CN.4/2004/105 (2003) 1
at 7.
105
LICADHO, Annual Activity Report, “Promoting and defending human rights in Cambodia” (2008),
online: LICADHO <http://www.licadhocambodia.org/reports/files/125LICADHAnnualActivityReportJanDec08publicEng.pdf>.
106
Ibid.
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Canadian Journal of Poverty Law
The political situation in Cambodia today remains bleak. The leader of the official
opposition party, the Sam Rainsy party, was exiled and tried in absentia.107 The
government has passed a number of laws seeking to impair freedom of expression and
opinion of trade unions, local activists and property owners.108
ii. Economic context
Cambodia remains an extremely poor country. Cambodia ranks 139th out of 187 on the
Human Development Index (HDI) with an HDI of 0.523.109 The country is below the
regional average: the HDI of the East Asia and the Pacific region increased from 0.428
in 1980 to 0.671 in 2010.110 The gross national income per person sits at US $750.111
At the same time, Cambodia has generally posted strong annual GDP growth rates. In
2007, Cambodia’s annual GDP growth rate was 10.2 per cent, followed by 6.7 per cent
2008.112 During the global recession, Cambodia’s GDP dipped to 0.1 per cent, but
shows signs of recovering with a growth rate of 6.0 per cent in 2010. 113 Cambodia is
rich in natural resources, including an estimated 12 million acres in un-forested, irrigated
and arable lands.114 In 2009, 33.4 per cent of Cambodia’s GDP was based on
agricultural activities.115
Despite Cambodia’s economic potential, foreign donors continue to fund about half of
Cambodia’s budget.116 International Development Assistance (IDA) grants to Cambodia
have increased by an estimated 94 per cent from 2003 to 2010.117 Between 2007 and
2011, Cambodia received an average $22,450,057 in IDA.118 Donors continue to ignore
requests from civil society to stop funding the government without requiring improved
governance measures.119
107
The Associated Press, “Cambodia: Opposition leader convicted in abstentia” (24 September 2010),
online: New York Times <http://www.nytimes.com/2010/09/24/world/asia/24briefs-Cambodia.html>.
108
Anstis, supra note 19.
109
World Bank, “International human development indicators” online: World Bank
<http://hdrstats.undp.org/en/countries/profiles/KHM.html>.
110
Ibid.
111
World Development Indicators, supra note 44.
112
CIA World Factbook, “Cambodia” online: CIA <https://www.cia.gov/library/publications/the-worldfactbook/geos/cb.html>.
113
Ibid.
114
US Department of State, supra note 96.
115
Ibid.
116
Global Witness, “Cambodia” online: Global Witness
<http://www.globalwitness.org/campaigns/corruption/oil-gas-and-mining/cambodia>.
117
World Development Indicators, supra note 44.
118
Ibid.
119
Sebastian Strangio, “$1.1 billion pledged in donor aid” Asia Times (06 June 2011), online:
<http://www.sebastianstrangio.com/2010/06/06/1-1-billion-pledged-in-donor-aid/> [Strangio].
119
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iii. Access to justice programs in Cambodia
In 1991, UNTAC became the temporary head of the country’s political and legal
systems in collaboration with the Cambodian Supreme National Council, which was
made up of representatives of the country’s four warring political factions.120 UNTAC
operations cost US $1.6 billion and involved over 22,000 international civilian and
military staff.121
The Human Rights Component of the UNTAC mandate included rebuilding judicial
institutions from scratch. This was particularly challenging as the persecution and killing
of intellectuals during the Khmer Rouge regime left the country devoid of trained
professionals, notably in the legal sphere. Only a few jurists survived. 122 Additionally,
the post-Khmer Rouge socialist regime, in power with Vietnamese support from 1979
until the early 1990s, did not help develop the judiciary.123
A study by Caroline Hughes shows that UNTAC focused on the ‘thin’ side of rule of law
and access to justice.124 UNTAC helped build institutional capacity through training
programs for judges and lawyers, stressing the independence of the judiciary and the
elements of a fair trial. UNTAC also drafted some of the first laws, including the Criminal
Law and Procedure of 1992 of UNTAC. Ultimately, Hughes writes, the UN’s mandate,
which was aimed at securing peaceful elections, “severely constrained its attempts to
rebuild a functioning legal system.”125 The first attempt at developing access to justice in
Cambodia was secondary to other peace-building efforts and institution-focused.
Over the past few years, institutions like the World Bank and the United Nations
Development Program (UNDP) have invested in access to justice initiatives. While such
initiatives traditionally focused on institutional capacity building, there have been
aspects of substantive access to justice reform. Some programs have focused on a
‘light’ understanding of legal empowerment and on opening new discursive spaces for
access to justice. For example, the UNDP ran an access to justice program from April
2006 to March 2010 in Cambodia, investing a total of US $3,268,410. The program
focused on developing alternative dispute resolution mechanisms for marginalised
120
Subedi, supra note 101 at 253.
United Nations, “Cambodia UNTAC: facts and figures, United Nations peacekeeping missions” online:
United Nations Online <http://www.un.org/en/peacekeeping/missions/past/untacfacts.html>.
122
Gottesman, supra note 98 at 4.
123
Dolores Donovan, “Cambodia: Building a Legal System from Scratch” (1993) 27:2 International Lawyer
445 at 446. Donovan is a Professor and Director of International Programming at the University of San
Francisco.
124
Caroline Hughes, UNTAC in Cambodia: The Impact on Human Rights (Singapore: Stamford Press,
1996). Hughes is Director of the Asia Research Centre and Associate Professor of Governance Studies
in the School of Social Sciences and Humanities at Murdoch University.
125
Ibid. at 36.
121
120
Canadian Journal of Poverty Law
populations.126 The World Bank’s “Justice for the Poor Program” is aimed at
“mainstreaming” justice issues and has assisted with trainings on media law and
freedom of expression.127 Pushed by an influx of NGOs in the 1990s, Cambodia has
also slowly developed a vibrant civil society. A number of local organisations work on
access to justice programs that cover both substantive and formalistic components.
Services include helping victims access legal aid and developing alternative dispute
resolution systems.128
However, despite these efforts, key institutions for securing even a thinner version of
the rule of law are dysfunctional. The judiciary is riddled with corruption.129 As the
Cambodian League for the Promotion and Defence of Human Rights (LICADHO)
reports: “It is widely believed that judges, prosecutors and court clerks pay for their
positions, and at times court and government officials have privately acknowledged
this.”130 The police are equally as corrupt and ineffective, with 70 per cent of citizens
likely to pay a bribe.131
Cambodia’s ranking in the Rule of Law Index is illustrative of the lack of rule of law in
the country. Out of a total of 66 countries surveyed, Cambodia generally ranked
between 66th and 61st place.132 It ranked 64th out of 66th in terms of access to justice.
Only two areas showed a slight improvement. Cambodia ranked 41st out of 77th in order
and security and 55th in effective criminal justice.133
126
United Nations Development Programme (UNDP) Cambodia, “Access to justice” online: UNDP
<http://www.un.org.kh/undp/what-we-do/projects/access-to-justice-project>.
127
Vivek Maru, “Access to Justice and Legal Empowerment: A Review of World Bank Practice” (2010) 2:2
Hague Journal on the Rule of Law 259 at 272.
128
For example, see: Community Legal Education Center, online <http://www.clec.org.kh/> and
Cambodian Centre for Human Rights, online <http://www.cchrcambodia.org/>.
129
Charade of Justice, supra note 80 at 22. Also see, for example, United Nations Office on Drugs and
Crime, “Cambodian judges and prosecutors in lively judicial integrity dialogue” (6 July 2012), online:
UNODC <http://www.unodc.org/southeastasiaandpacific/en/cambodia/2012/07/judicialintegrity/story.html>.
130
Charade of Justice, supra note 80 at 22.
131
U4 Anti-Corruption Resource Center, “Overview of corruption in Cambodia” (23 March 2009), online:
U4 <http://www.u4.no/publications/overview-of-corruption-in-cambodia/> 1 at 3-4.
132
Rule of Law Index, supra note 41 at 49.
133
Rule of Law Index, ibid. at 49. While more effective criminal justice make exist, it may simply be a
result of violent police behaviour. See: LICADHO, Video, “Union worker beaten during ASEAN summit in
Cambodia’s capital” (11 July 2012), online: LICADHO <http://licadho-cambodia.org/video.php?perm=34>;
LICADHO, Press Release, “The culture of impunity and violence must stop” (30 May 2012), online:
LICADHO <http://licadho-cambodia.org/pressrelease.php?perm=282> [Culture of Violence]; LICADHO,
Press Release, “Condemnation of unjustified & violent response to peaceful demonstration by Boeung
Kak residents” (22 May 2012), online: LICADHO <http://licadhocambodia.org/pressrelease.php?perm=278>.
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iv. Land Rights in Cambodia: A Brief Overview
The Khmer Rouge regime destroyed the institution of property in Cambodia. It emptied
Phnom Penh and other areas of the country of people and forcibly displaced them into
new communes. Private ownership was abolished and land rights collectivised. Land
right titles were destroyed.134
In the early 1990s, after the end of the Khmer Rouge regime and the subsequent
Vietnamese-backed socialist regime, the country re-introduced private land rights.135
Former collectively owned land was distributed to returning Cambodians. Ghai writes
that the initial distribution of land after the reforms in 1989 was “remarkably
egalitarian.”136 However, rife with corruption and inundated with requests for documents
proving title, the land titling system never really took effect. Land titles for the 1989
distribution were never issued and land grabbing began soon after Vietnamese
withdrawal.137
The 1992 Land Law permitted ownership by “actual, open and continuous possession
for at least five years … provided certain conditions were satisfied, including the
absence of any other claim.”138 The absence of distributed titles as a defence against
possession and de facto possession itself facilitated this land grabbing process with the
Land Law quickly becoming “a get rich quick manual for the upwardly mobile” who knew
how to meet registration requirements.139 Already marginalised rural families were
largely unable to secure the right papers to protect their land rights.140
A new Land Law was passed in 2001.141 Ghai and NGOs working in Cambodia have
acknowledged that the law itself provides “a fundamental basis for the reduction of land
disputes.”142 However, the effective administration of the law requires land titling, and
Ghai reports, “There is a continuing problem of lack of capacity to complete the titling
process, and a serious problem of corruption.”143
134
Yash Ghai, “Access to Land and Justice: Anatomy of a State Without the Rule of Law” in Yash Ghai &
Jill Cottrell, eds, Marginalized Communities and Access To Justice (New York: Routledge, 2010) 37 at 46
[Anatomy of a State]. Also see Supreme National Economic Council, Report of Land and Human
Development in Cambodia (2007), online:
<http://www.un.org/esa/agenda21/natlinfo/countr/cambodia/land.pdf>.
135
Anatomy of a State, ibid.
136
Anatomy of a State, supra note 134 at 46.
137
Ibid.
138
Ibid.
139
Ibid.
140
Ibid.
141
Subedi, Land Concessions, supra note 64 at para. 14.
142
Anatomy of a State, supra note 132 at 46.
143
Ibid. at 47.
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The government has also passed a number of sub-decrees, such as the Sub-Decree on
Economic Land Concessions.144 While these land concessions are ostensibly meant to
spur economic development efforts, authorities have failed to enforce the necessary
pre-conditions for allowing such concessions and thus have facilitated the arbitrary
eviction of communities.145 Furthermore, the United Nations Office of the High
Commissioner for Human Rights (OHCHR) reports that the judicial system is complicit
by failing “to uphold the rights of affected communities and respect for the law, and to
hold companies accountable for their actions.”146
Indeed, since the Land Law was passed in 2001, forced evictions and land grabbing
continue to occur in rural and urban areas. In Phnom Penh alone, 30,009 families have
been forcibly displaced since 1990, which represents about 9.5 per cent of the city’s
population.147 LICADHO reported that during the first half of 2010, an estimated 17,000
people were newly affected by land grabbing in 13 out of the country’s 24 provinces. 148
An estimated 150,000 people continue to face the threat of eviction.149
There are a number of causes behind land grabbing, particularly the continued granting
of land as economic land concessions to be used in development projects. 150 Influential
government members, private investors and the Royal Cambodian Armed Forces work
together to sell off large tracts of Cambodia for their own profit.151 While the 2001 Land
Law might theoretically offer protection, “laws are applied selectively or by-passed
altogether.”152 There is an absence of democratic accountability and a pervasive culture
of impunity: authorities and powerful businessmen have the power to issue “dubious
land titles,” eviction orders and exploit a broken judicial system when victims try and
144
Ibid. at 139.
Yash Ghai, “Economic Land Concessions in Cambodia: A human rights perspective” (June 2007),
online: Office of the High Commissioner for Human Rights
<http://cambodia.ohchr.org/WebDOCs/DocReports/2-Thematic-Reports/Thematic_CMB12062007E.pdf>
1 at 1 [Economic Land Concessions]. Also see Subedi, Land Concessions, supra note 64 at para. 96:
Subedi notes that the “promotion of private sector investment appears to have taken precedent over
compliance with requirements of the law, resulting in the granting of large tracts of land in protected
areas, on the land of indigenous peoples, and in primary forest areas.”
146
Ibid.
147
Sahmakum Teang Tnaut, “Displaced families: Phnom Penh 1990-2011” (May 2011), online: STT
<http://teangtnaut.org/PDF/F&F%20displaced%20PP%20families%202011%20update.pdf> 1 at 6.
148
Human Rights Watch, “World Report 2011: Cambodia” (2011), online: HRW
<http://www.hrw.org/world-report-2011/cambodia>.
149
NGO Working Group, “Parallel report on Cambodia to the UN Committee on Economic, Social and
Cultural Rights” (April 2009), online:
OHCHR<http://www.ngoforum.org.kh/eng/llp/llpdocs/FinalLandandHousingAnnextoParallelReport,FINAL
VersionApril09.pdf> 1 at 2 [Parallel Report].
150
Ibid. at 3. Also see Subedi, Land Concessions, supra note 64 at para. 11.
151
Parallel Report, ibid.
152
Ibid. at 12.
145
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assert their rights.153 International bodies are sometimes complicit in the situation. The
World Bank Inspection Panel found that the World Bank had improperly administered its
Land Management and Administration Project (LMAP) in Cambodia and failed to protect
4,000 families living around Boeung Kak Lake in Phnom Penh.154 Instead, the World
Bank had followed government orders and decided not to issue land titles to residents
facing evictions even if they had satisfied land ownership requirements under the 2001
Land Law.155 The government declared that the land was theirs and leased it to a
Chinese developer, who evicted its residents.156
Additionally, a new draft law titled the Draft Law on the Management and Use of
Agricultural Land was introduced in 2011.157 Among other issues, it provides criminal
liability in case of violation.158 LICADHO argues that the law is “incomprehensibly
vague” and thus will be used as a mechanism to incarcerate persons protesting land
evictions.159 The law also allows for the creation of “Agricultural Development Areas.”160
The Ministry of Agriculture, Forestry and Fisheries can create these wherever they want
provided a “substantial majority” of landowners are affected.161 Those who do not agree
with the development plan are subject to criminal liability for failing to comply.162 Another
concern is the creation of a new scheme called “agricultural land leases,”163 which could
override the Economic Land Concessions system. Unlike the latter scheme, there are
no limits in this new law as to the size of land leased, nor are there requirements for
environmental impact assessments or prior consultation.164 This type of legislation, as
153
Parallel Report, supra note 149 at 12.
Irwin Loy, “Cambodia: Botched World Bank project leads to thousands of evictions” IPS News (17
March 2011) online: <http://ipsnews.net/newsTVE.asp?idnews=54888>.
155
Ibid.
156
Ibid.
157
LICADHO, Briefing Report, “Cambodia’s draft law on the management and use of agricultural land”
(July 20120), online: LICADHO <http://www.licadhocambodia.org/reports/files/169LICADHOBriefingDraftAgriculturalLaw-English.pdf> [Draft Law on
Management and Use of Agricultural Land].
158
Draft Law on Management and Use of Agricultural Land, ibid. at 1. Subedi warns against the
criminalization of individuals claiming their land rights in his report to the Human Rights Council (Subedi,
Land Concessions, supra note 64 at paras. 181-184). Also see Global Witness, “International attention on
Cambodia’s land grabs as Mam Sonando case goes to Appeal” (5 March 2013), online: Global Witness
<http://www.globalwitness.org/library/international-attention-cambodia%E2%80%99s-land-grabs-mamsonando-case-goes-appeal> and Kate Hodal, “Cambodia activist in attempt to overturn conviction” (5
March 2013), online: Guardian UK <http://www.guardian.co.uk/world/2013/mar/05/cambodian-activistoverturn-conviction>.
159
Draft Law on Management and Use of Agricultural Land, ibid. For example, as LICADHO notes, there
is a requirement that property holders ensure their land use is “sustainable” according to the General
Directorate of Agriculture.
160
Draft Law on Management and Use of Agricultural Land, ibid. at 1, 5; Subedi, Land Concessions,
supra note 64 at paras. 64-65.
161
Draft Law on Management and Use of Agricultural Land, ibid. at 5.
162
Ibid. at 1.
163
Ibid. at 2.
164
Ibid. at 7.
154
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well as the government’s treatment of existing laws, are symptomatic of a lack of
democratic accountability and a deficit in rule of law and arguably limit individuals from
fulfilling their individual and collective potential, which could ultimately lead to equitable
growth and improvement in quality of life.165 As Subedi notes, the current land
concessions system is “only benefiting a minority.”166
b) The role of legal empowerment and popular resistance
i. Legal empowerment and its impact on economic growth
Legal empowerment requires moving beyond the “supply” and “demand” conceptions of
access to justice. While legal empowerment plays a central role in both, legal
empowerment is more closely focused on empowering grassroots groups or informal
networks, i.e. loose associations of individuals working together to advance a common
objective, with the aim of accessing justice effectively and efficiently.
Legal empowerment is a meaningful means by which to achieve access to justice and
to ensure the effectiveness of rule of law.167 Chukwumerije, for example, attributes the
failure of the initial rule of law and development movement on its State-centred
nature.168 One of the underlying assumptions of this model was that the “state is the
primary locus of supra-individual control in society.”169 However, as Chukwumerije
writes, by focusing primarily on the State, the movement failed to consider informal
interactions outside the traditional legal process.170 Legal empowerment is geared at
addressing this deficiency by pushing rule of law programs to help affected communities
voice their needs, rather than simply focusing on State-based solutions.
The Commission on Legal Empowerment of the Poor (CLEP) defines legal
empowerment as:
165
United Nations Development Program, “Deepening democracy in a fragmented world” (2002) online:
<http://hdr.undp.org/en/media/hdr_2002_en_overview.pdf> 1 at 3.
166
Subedi, Land Concessions, supra note 64 at para. 130.
167
Commission on Legal Empowerment of the Poor (CLEP), “Making the law work for everyone: Volume
1” (21 October 2008) online: UNDP <http://www.undp.org/content/undp/en/home/librarypage/democraticgovernance/Lep/making-the-law-work-for-everyone---vol-i.html> at 1 at 5 [CLEP].
168
Chukwumerije, supra note 1 at 391-395.
169
Ibid. at 391.
170
Ibid. at 392.
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A process of systemic change through which the poor and excluded become able
to use the law, the legal system, and legal services to protect and advance their
rights and interests as citizens and economic actors.171
CLEP believes that that plight of nearly four billion people whose day-to-day lives are
affected by regimes with weak rule of law contributes to their inability to climb out of
poverty.172 The Report reads:
In too many countries, the laws, institutions and policies governing economic,
social and political affairs deny a large part of society the chance to participate on
equal terms … This is not only morally unacceptable; it stunts economic
development and can readily undermine stability and security. 173
Stephen Golub defines legal empowerment as “the use of legal services and related
development activities to increase disadvantaged populations’ control over their
lives.”174 Legal empowerment programs are aimed at “strengthening the roles,
capacities and powers of the disadvantaged and civil society.” 175
The Asian Development Bank has conducted yearlong research in 2001 on legal
empowerment in seven different countries.176 In ADB’s findings, the use of collective
advocacy and network or coalition building are identified as two effective strategies to
achieve legal reforms. The ADB study concluded that the “most positive results [in legal
reform] generally emanate from community specific work.”177 One of the key
conclusions emerging from this study is that even if rights are understood, their
implementation and enforcement by the poor requires “an element of community
organising.”178
One could extend the relationship between rule of law and economic growth to the role
of access to justice, a core aspect of rule of law,179 in ensuring equitable economic
growth. However, this relationship should also be carefully examined. Access to justice
should not be considered a simple solution to economic growth. Access to justice,
171
Dan Banik, “Legal Empowerment as a Conceptual and Operational Tool in Poverty Eradication” (2009)
1 Hague Journal on the Rule of Law 117 at 120 [Banik].
172
CLEP, supra note 167 at 1.
173
Ibid. at 2
174
Stephen Golub, “Beyond the Rule of Law Orthodoxy: The Legal Empowerment Alternative” (2003) 41
Rule of Law Series: Carnegie Endowment for International Peace 3 at 25-26 [Golub].
175
Ibid. at 25-26.
176
Asian Development Bank, “Lessons Learned from Successful Legal Empowerment Strategies” (2001)
Law and Policy Reform at the Asian Development Bank [Asian Development Bank].
177
Ibid. at 84.
178
Asian Development Bank, supra note 176 at 77.
179
CLEP, supra note 167 at 18-22.
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similar to other elements of rule of law, is influenced by a complex set of socioeconomic and political factors influencing a country’s development.180
ii. Legal empowerment and social movements: securing meaningful growth
This case study will suggest that legal empowerment should be combined with social
movements and political mobilisation to reverse entrenched interests in order to secure
equitable growth in contexts where there are weak democratic institutions and a deficit
in rule of law. Accepting the premise that access to justice has an impact on economic
growth by providing a means through which to secure property and contractual rights,
legal empowerment is required to ensure that these advantages are secured by all
citizens, and not just the most disadvantaged. Legal empowerment, combined with a
social movement, helps reverse powerfully entrenched interests that a thin or even thick
understanding of access to justice is not conceptually geared to do.
As per Michael Mann’s definition of a social movement:
A sustained series of interactions between power holders and persons
successfully claiming to speak on behalf of which those persons make publicly
visible demands for changes in the distribution or exercise of power, and back
those demands with public demonstrations of support.181
As Khair writes, “there is very little initiative [in the legal empowerment model] to change
prevalent structural inequalities and power relations that essentially perpetuate
disempowerment of the poor and disadvantaged groups.”182 Khair believes that legal
empowerment must be considerate of and tailored to the specific history, culture and
political economy in which it takes place.183
Social movements and legal mobilisation move the debate beyond the narrow confines
of litigation and other lawyer or institution-centred techniques.184 Focusing on legal
empowerment and social movements shifts the discussion to the process of achieving
180
Banik, supra note 171 at 119. For example, Banik notes that other factors which cause poverty
contribute to the marginalization of four billion people. These include “low growth of income, inequality,
social exclusion and entitlement failures, inadequate social services, high population growth,
environmental degradation, economic inefficiency, social and political instability and vulnerability to debt,
disease and natural disasters.”
181
Michael Mann, “Law and Social Movements: Contemporary Perspectives” (2006) 2 Annu. Rev. Law
Soci. Sci. 17 at 23 [Mann].
182
Sumaiya Khair, “Evaluating Legal Empowerment: Problems of Analysis and Measurement” (2009) 1
Hague Journal on the Rule of Law 33 at 35 [Khair].
183
Ibid.
184
Mann, supra note 181 at 23.
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justice, and whether this is effective.185 In line with Sen’s concept of justice, there is no
preconceived notion of what justice must look like, or what institutions must supply it.
Rather, social movements using both legal and non-legal strategies can deliver longterm change and help ameliorate the skewed distribution of power and resources and
affect sustainable changes.
The use of social movements to secure legislative change, for example, is not foreign. A
famous example is the Brown v Board of Education decision, which was inspired by the
mobilisation of African Americans against a system of segregation. 186 As Mann notes,
“social movement groups often use litigation specifically to create such formal
institutional access to state power or other institutions as well as to apply pressure to
make that access consequential.”187 However, he also emphasises that legal
approaches “tend to be most useful in concert with other strategies, such as public
demonstrations, legislative lobbying, collective bargaining, electoral mobilisation, and
media publicity.”188
iii. Legal empowerment and social movements in Cambodia
The following section demonstrates that Cambodian grassroots groups are taking a
mixed approach in asserting their right to access to justice. This approach marries
litigation, which influences the process of social mobilisation through confidence
building and the development of more formalised organisational structures,189 as well as
traditional social movement strategies including protesting and leafleting, which focuses
on community organising and bottom-up empowerment.190
Mass mobilisation and the grassroots movement over land rights are burgeoning in
Cambodia. For example, community members from around Prey Lang forest, a tract of
protected land several hours from Phnom Penh where many indigenous groups live,
and which is slowly being sold off by the government, have started joining urban
185
Ibid. at 22.
Ibid. at 27.
187
Mann, supra note 181 at 33.
188
Ibid. at 31.
189
Ibid. at 26.
190
Subedi documents some of the techniques used by communities, including: peaceful marches,
blessing ceremonies, demonstrations and distributing leaflefts to raise awareness about the threat to the
forest’s natural resources and the communities’ livelihoods. Some communities have taken these tactics
even further, and Subedi documents a case where an indigenous community took company workers
hostage for several hours in protest of the company clearing their land (Subedi, Land Concessions, supra
note 64 at 186).
186
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communities facing evictions in Phnom Penh to protest.191 The Boeung Kak Lake
community protest regularly, despite numerous arrests,192 since the beginning of the
evictions process.
Out of fear of repression, the organisational structure of a social movement in
Cambodia is fluid:
The communities have a much more organic functioning. Outspoken and active
members of the communities will be on the front line and will lead their
communities, but the process is rarely a formal one. In these instances,
authorities will try to force the communities to come up with ‘formal’ leaders,
claiming it is needed to receive complaint letters and enter into discussion with
communities. This demand itself becomes a threat within a Cambodian setting.193
However, a community facing evictions will still choose a community representative to
lead the group.194 This person then takes the community through the following three
steps, which are the general starting point for communities seeking justice in
Cambodia:195 (1) they initially try and get assistance from local authorities (the village
chief, the commune chief or the Cadastral Survey Department); (2) they lodge a
complaint in the trial court; (3) and they appeal the verdict up to the Supreme Court.196
In addition to these three formal steps, communities rely strongly on “meta-legal
tactics,”197 such as distributing pamphlets, petitioning and peaceful/non-peaceful
protesting both in rural and urban areas,198 media statements, blocking roads, posters
and banners, songs, holding hands to protect community lines, marches, t-shirts, public
191
LICADHO, News Release, “Community leaders rally for land rights in Phnom Penh” (21 June 2010),
online: LICADHO <http://www.licadho-cambodia.org/articles/20100621/118/index.html> [Rally for Land
Rights]; Subedi, Land Concessions, ibid. at para. 186.
192
Culture of Violence, supra note 131; Khuon Narim and Khy Sovuthy, “More than 100 Boeng Kak
Protesters Clash with Police” (23 April 2013), online: Cambodia Daily
<http://saveboeungkak.wordpress.com/2013/04/23/more-than-100-boeng-kak-protesters-clash-withpolice/>.
193
Pellerin, supra note 81.
194
Suy, supra note 81.
195
Communities in China facing land evictions use similar tactics as grassroots networks in Cambodia to
advocate for access to justice. This includes civil litigation, protests, roadblocks, and petitioning. They
also face similar challenges with corrupt local authorities, and courts subject to the control of the
government. For more information see Eva Pils, “Peasants’ Struggle for Land in China” in Yash Ghai and
Jill Cottrell eds, Marginalized Communities and Access to Justice Peasants struggle for land in China
(New York: Routledge 2010).
196
Suy, supra note 81.
197
Asian Development Bank, supra note 176 at 53.
198
Economic Land Concessions, supra note 145 at 17.
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forums and burning tires.199 These strategies have been identified as “a key element of
the successful legal implementation efforts.”200 Communities have also begun to rely on
new meta-legal strategies, which we discuss in more detail below.
Interviews with community leaders and NGO workers about what they consider to be
justice and access to justice clearly highlight that, despite corruption, institutional
mechanisms have a place in conflict resolution. Thus, communities do try to seek justice
through the courts. However, they face a number of challenges, which we address
further on. Moreover, out of fear, they generally refrain from suing the government or
ministry officials, the individuals generally authorising evictions.201
Communities also appeal to bodies like the Cadastral Commission, an institution
designed to address disputes over unregistered land. A 2006 World Bank report notes
that only 27 per cent of persons using the Cadastral Commission make informal
payments to the Commission, suggesting that corruption at the lower level of the
Commission is still manageable and thus the Commission remains more accessible to
disadvantaged groups.202 However, Sithan Phann, in a report on the Commission,
writes that the body “is only able to deal through conciliation when both disputants have
similar power.”203 Considering that land disputes often pit the poor against the ‘rich and
powerful’ as noted above, this leads to a number of unresolved cases. Phann notes that
the Commission’s percentage of resolved cases is dropping and a backlog is building
up.204
Community networks are also aware of the Cambodian government’s dependency on
aid funding, as well as the growing sensitivity of international governments to blatant
human rights abuses. Vanny, who is a leader for the Boeung Kak Lake community that
has been fighting evictions since 2007, describes a new meta-legal strategy taken by
her group:
199
Interview of Lee Robinson, Director of LICADHO Canada in Phnom Penh, Cambodia (25 September
2011) [Robinson].
200
Asian Development Bank, supra note 176 at 53.
201
Robinson, supra note 199.
202
Centre for Advanced Study, Ministry of Land Management, Urban Planning and Construction, National
Cadastral Commission Secretariat, the World Bank, Trust Fund for Environmentally and Socially
Sustainable Development, “Towards institutional justice? A Review of the work of Cambodia’s Cadastral
Commission in relation to land dispute resolution” (2006), online: SSRN
<http://ssrn.com/abstract=1012490>.
203
Sithan Phann, “Land conflict and conflict resolution through Cadastral Commission” online: Forum for
Urban Future in Southeast Asia <http://www.forum-urbanfutures.net/files/Sithan_Land%20Conflict%20and%20Conflict%20Resolution.pdf> at 5 [Phann]. Subedi
also notes that decisions of such bodies are still “inconsistent, irregular and subject to political
interference” (Subedi, Land Concessions, supra note 64 at para. 177).
204
Phann, supra note 203 at 6.
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In my community, before turning to advocacy, we wrote letters to different
government bodies to get information and solutions. But there was no solution,
so we began protesting ... Our community sees that government and local
authorities do not want to help; we do not expect that they will change their
minds or do something for us. Now we change our strategy: going to different
embassies in Phnom Penh. For example, recently we went to the French
embassy. Many police were present. We thought that those police might take
action against us as they have in other areas, when we went to the
government buildings but the French embassy official said not to use violence
against us.205
Local communities are finding some support among international political bodies and
their complaints to embassies may be having an effect. For example, in May 2011, a
Member of the European Parliament acknowledged the devastating effects of the
EU’s “Everything But Arms” tariff system in encouraging concessions to sugar
plantations around Cambodia and prompted greater scrutiny of the policy. 206 Vanny
and other community leaders have also been active in presenting their cases to
individuals like Frank La Rue, the UN Special Rapporteur on Freedom of Expression
and Opinion, and Surya Subedi, the UN Special Rapporteur on the Situation of
Human Rights in Cambodia.207
Communities have also started to work with religious authorities during protests. For
example, Venerable Luon Sovath, a Cambodian monk, began attending protests in
his own community, which faced eviction, and has since become a common sight in
protests in Phnom Penh and other provinces.208 As a religious figure in a devoutly
Buddhist country, his presence at protests has had an important effect by further
legitimising community struggles. Sovath has also added an original media
component to the struggle.209 During the first protests in his community, he began
filming and photographing the evictions and ensuing protests. This approach has
205
Interview of Venerable Loun Sovath, Mr. Yu Tho, Mr. Chem Dara, Ms.Hem Sokhorn, Mr. Hoeun
Sopheap (10 July 2011) by Frank La Rue during his unofficial visit to Cambodia [La Rue and Land
Rights].
206
Khmerization, “A Swedish MP visits land-grab victims in Kampong Speu” Khmerization (20 May 2011)
online: <http://khmerization.blogspot.com/2011/05/swedish-mp-visit-land-grab-vicitms-in.html>; Mu Sochu
and Cecilia Wikström, “Land grabs in Cambodia” (19 July 2012), online: New York Times
<http://www.nytimes.com/2012/07/19/opinion/land-grabs-in-cambodia.html> [Land Grabs in Cambodia].
207
Heng Reaksmey, “Evictees Petition UN Rights Envoy for Homes” (26 April 2013), online: VOA Khmer
<http://www.voacambodia.com/content/evictees-petition-un-rights-envoy-for-homes150802365/1359410.html>.
208
LICADHO, Report, “Attacks and threats against human rights defenders in Cambodia 2008-2009”
(September 2010), online: LICADHO <http://www.licadho-cambodia.org/reports/files/1432010HRDReport2008-2009Final-ENG.pdf> at 16.
209
Ibid. at 17.
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been aided and adopted by NGOs like LICADHO, which now works in partnership
with Global Witness and the Open Society Institute to distribute FLIP Video Cameras
to community activists. The ability to film police officials when they beat up protestors
has played a role in deterring such actions, as well as enabling the recording of
concrete proof that authorities cannot tamper with and that provides important first
hand evidence to the media.
Some communities have found support in local political leaders, even those in the
Prime Minister’s majority party. Vannat, who is from a rural province called Kampong
Speu, describes how the community council representative, although a member of
the majority Cambodian’s People Party (CPP), joined protests against evictions by a
company owned by a CPP Senator. While the community leader eventually lost his
position and was imprisoned,210 advocacy efforts targeted at recruiting local level
authorities would likely bolster communities’ opportunities to access justice at a
decentralised level.
Recently, communities have started to expand the scope of their advocacy
movements by forming cross-community partnerships. In 2009, representatives from
158 villages launched a “coordinated complaints” campaign whereby communities
brought legal complaints to governmental bodies in hopes of legal protection. 211 In
2010, LICADHO reported that 350 community representatives from 24 provinces and
municipalities gathered together in protest of land rights abuses.212 Pellerin writes:
Communities are getting stronger in raising their own voices through peaceful
activism. Groups of villagers travelling to Phnom Penh to gather in front of key
national institutions are occurring on a near-weekly basis. Protests by
community members on the disputed land to prevent clearing of farmland and
rice paddies are also happening throughout the country.213
However, Robinson, who has been a part of the grassroots movement over the past few
years, writes:
Even with the growing number of communities fighting for their rights, the
growing number of families displaced, the growing number of communities
filing complaints in the court, we still have yet to see one community win their
210
La Rue and Land Rights, supra note 205.
Norwegian People’s Aid, News Release, “Communities campaign for land rights in Cambodia” (11
August 2009) online: NPAID
<http://www.npaid.org/en/news_archive/?module=Articles&action=Article.publicShow&ID=17264>.
212
Rally for Land Rights, supra note 192.
213
Pellerin, supra note 81.
211
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land case. This goes to show that efforts of communities have not yet reached
a critical mass.214
While these efforts have not necessarily been immediately successful in providing
access to justice mechanisms, if expanded, community activists believe popular
resistance may provide greater leverage to communities. Pellerin insists that this
form of activism is “crucial” because “while the government can easily dismiss reports
by organisations, both national and international, it is much harder, and politically
costlier, do so with a growing chorus of disenfranchised Cambodians.”215
However, grassroots networks face a host of challenges in their efforts to promote
access to justice. One such challenge is the government’s use of new legislation to
justify the incarceration of community leaders involved in land rights disputes, as well as
a means to neutralise protests.216 Protesting communities are also regularly subjected
to brutal acts of violence. During Boeung Kak lake evictions in late September 2011,
one man was almost beaten to death.217 Subedi notes that private companies have
“often employed State military and/or private security officers to guard the area” and that
“[i]n an increasing number of cases, armed personnel have used live fire in
confrontation with villagers who protest against the activities of concessions companies
from encroaching upon their farmland….”218
When communities try to fight for justice using the court system, they are faced with
insurmountable challenges. First, free legal representation in Cambodia is limited and
the Cambodian Bar Association, which should help with the provision of legal aid, “is
closely allied to the government.”219 Second, NGOs are the main source of free legal aid
in Cambodia; however, as Ghai reports, “The fear of other reprisals has led many
lawyers working for NGOs to resign and move into private practice.” 220 Third, new rules
have been passed that significantly increase the cost of bringing cases to court and
deter NGOs from representing victims.221 Even if community members have access to
legal representation and use more robust collective litigation methods, they are still
214
Robinson, supra note 199.
Pellerin, supra note 81; Ramanujam, supra note 43 at 208.
216
Anstis, supra note 19 at 8. Human Rights Watch also reports on the use of the judicial system to
incarcerate land rights activists: Human Rights Watch, “Cambodia: Escalating violence, misuse of courts”
(1 February 2013), online: <http://www.hrw.org/news/2013/02/01/cambodia-escalating-violence-misusecourts>.
217
LICADHO, Video, “Boeung Kak lake activist savagely beaten by mob of police officers during forced
eviction” (17 September 2011), online: LICADHO <http://www.licadhocambodia.org/video.php?perm=25>.
218
Subedi, Land Concessions, supra note 64 at paras. 158-161.
219
Anatomy of a State, supra note 134 at 42.
220
Ibid. at 42.
221
Ibid. at 43.
215
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faced with a corrupt and arbitrary institution directly under the control of the
government.222 Suy explains that even if villages successfully appeal a verdict up to the
Supreme Court, “the Prime Minister asks the Ministry of Justice to check [the outcome
of cases]” and villagers generally lose.223 Civil litigation can also backfire and render
grassroots networks more vulnerable.224
Other communities face resistance from their community leaders.225 While some bodies
like the UNDP are introducing alternative dispute resolution processes to resolve such
conflicts it is clear that existing power differentials between local institutions vested with
problem-solving authority and the community might render them ineffective and
unjust.226
The government remains apathetic to citizens’ concerns. At least in the short-term, the
government benefits directly from the concession of land to major developers. As the
Office for the High Commissioner for Human Rights (OHCHR) reports, “there has been
no real action by the Government to enforce company compliance with the Land Law
and with concession contracts.”227
Finally, a major challenge to grassroots communities is the competing objectives of
seeking access to justice while supporting the basic needs of their families. Advocating
for justice, while being plagued with the challenges of poverty, is often a losing battle.
Indeed, in cases of forced evictions, families are often left without access to basic needs
like food and shelter. Furthermore, the cost of protesting in Phnom Penh and organising
countrywide mobilisation can be prohibitive, particularly for rural communities.
222
Yash Ghai, Video, “Cambodia access to justice” (16 September 2008), online: You Tube
<http://www.youtube.com/watch?v=THmxwlbrVcQ>.
223
Suy, supra note 81.
224
Anatomy of a State, supra note 134 at 43.
225
May Titthara, “Chief accused of threatening villagers over land dispute” Phnom Penh Post (14
September 2011), online: <http://www.phnompenhpost.com/index.php/2011091451632/Nationalnews/chief-accused-of-threatening-villagers-over-land-dispute.html>.
226
Steven Austermiller, Report, “Alternative dispute resolution: Cambodia” (January 2010) online:
American Bar Association <
http://apps.americanbar.org/rol/publications/cambodia_adr_book_english_01_19_09.pdf> at 195.
227
Economic Land Concessions, supra note 145 at 19.
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V. Strengthening social movements and the legal empowerment agenda
a) How states and local/international NGOs can help strengthen legal empowerment
through social movements
The following section provides recommendations on how social movements can be
strengthened in order to secure access to justice and rule of law, and, consequently,
help ensure equitable growth.
It is undeniable that foreign States play a key role in Cambodia’s future. While a
grassroots social movement can inspire change, this cannot be considered in isolation
of other local regional and global influences. Foreign countries are often complicit in
perpetuating an authoritarian state characterized by rampant corruption and an acute
deficit of democratic accountability and rule of law.228 It is time that major bilateral
donors follow in the course set by the World Bank which froze aid funding to the
Cambodian government.229 Donors fund half of the government’s budget and a major
withdrawal of this funding would likely have a strong impact. The fear of becoming a
pariah state in the eyes of the international community can potentially spur governments
like Cambodia into taking action. In June 2010, during an international donor meeting
for Cambodia, a group of 15 local NGOs issued a statement saying donors should “take
responsibility and speak out against the deterioration of rights and democracy in
Cambodia. Doing nothing, they added, could be seen as ‘tantamount to complicity.’” 230
Embassies in Cambodia also play an important role. These embassies can offer a
flexible source of emergency funding that can be rapidly dispensed to communities who
appeal for it. The European Union Guidelines on Human Rights Defenders (HRDs)
provide an important starting point.231 A number of strategies in the Guidelines have
already proved effective in the struggle for access to justice, including sending EU
officials to monitor trials (which can serve as a deterrent to corrupt judicial practices)
and by having embassies publicly support community access to justice efforts. One
good example of effective monitoring and public support is by the French embassy,
which has begun sending staff to eviction areas in Boeung Kak Lake District to ensure
there is no violence.232
228
Land Grabs in Cambodia, supra note 206.
Robinson, supra note 199.
230
Strangio, supra note 119.
231
European Council, Strategy for the Implementation in Cambodia of the EU Guidelines on Human
Rights Defenders (Brussels: European Council, 2010).
232
Robinson, supra note 199. Also see protests, for example, in front of the US Embassy: Rachel
Vandenbrink, “No Progress on Impunity” (13 November 2012), online: RFA Khmer
<http://www.rfa.org/english/news/cambodia/hrw-11122012191040.html>.
229
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International (INGOs) and local NGOs and the media also play a key role in supporting
social mobilisation. A number of programmatic changes can be made by INGOs and
NGOs to become more inclusive and supportive towards grassroots networks, as well
as to assist with long-term institutional changes. INGOs and NGOs should develop the
means of offering more flexible funding to community groups. Grassroots groups
themselves, according to the strategies they wish to use in accessing justice, should
determine the use of this funding. Similarly, INGOs and NGOs must be flexible in their
responses to different situations and be able to assist in a range of circumstances. 233
Donors should offer more options for core funding to local NGOs. Most NGOs do not
benefit from any programmatic autonomy as their respective donors are subject to
rigorous reporting requirements and earmarked funds, which often have a narrow focus
such as building access to justice solely through institutional reforms.234 Media, in
conjunction with a supportive civil society, plays a key role in providing and sharing the
information necessary to effect change and in encouraging economic development. 235
NGOs and INGOs need to make clear political statements against the government’s
arbitrary and violent behavior towards its citizens. INGOs fear that the government will
ban them from working in the country, which is a very real threat. However, if NGOs and
INGOs are united and send a clear message to the government, protesting against what
it is doing, the government might find it more difficult to react with the collective
dismantling of these bodies.
As a local NGO, LICADHO is able to liaise closely with local government authorities,
judges, and lawyers. In order to break down some of the power barriers between these
bodies and community networks, LICADHO should consider continuing to hold training
sessions that bring these groups together in more neutral territory. Focusing bridge
building efforts on particular individuals within institutions involved in land rights
disputes, like the judiciary, could serve to work against institutionalized corruption. The
Asian Development Bank reports that such efforts have, for example, “exposed judges
to new ways of thinking.”236
233
Asian Development Bank, supra note 176 at 81.
Golub, supra note 174 at 22-24.
235
Besley and Burgess find a correspondence between media development and government
responsiveness in India. See Timothy Besley and Robin Burgess, “The Political Economy of Government
Responsiveness: Theory and Evidence from India” (2002) 117:4 The Quarterly Journal of Economics. For
an extensive discussion of the relationship between economic development, media and civil society see
Ramanujam, supra note 43 at 208.
236
Asian Development Bank, supra note 176 at 76.
234
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b) A new concept of “justice:” How Amartya Sen’s approach can contribute to social
movements and the legal empowerment of the poor
Previously, we discussed multiple conceptions of justice. In this case study, we use
Sen’s understanding of justice because it is focuses on the process of pursuing justice.
We argue that such a conception of justice may be practically useful for social
movements.
As it stands, grassroots networks in Cambodia tend to focus on the outcome of
institutional processes and how unjust they are. When discussing human rights efforts,
community leaders regularly identify the unjust decisions of the courts, the arbitrary
exercise of police power against protestors, or the corrupt practices of local authorities.
While these are accurate assessments, the pervasive nature of corruption across
Cambodian institutions is paralysing.
In addition to the core need for a national movement against land rights abuses, we
suggest that grassroots communities consider integrating some of the following
processes, which are inspired by Sen’s thesis, into their learning and advocacy efforts.
Sen focuses on the role of reasoning and objectivity in the struggle for access to justice.
Reasoning – understanding the causal factors behind a situation that communities
consider to be unjust – can likely better equip individual members in identifying and
addressing injustices. Moreover, developing a reason-based approach to access to
justice and legal empowerment could help prevent violent reactions to situations of
injustice and contribute to a more peaceful and sustainable process of social change. It
can also prepare the type of leadership required to carry forward mass social
movements.237 The Asian Development Bank notes that in South Asian countries
implementing access to justice programs, knowledge is a necessary precondition to
successful legal empowerment, followed by awareness of how to use this knowledge in
practice to protect rights.238 In line with this, communities have requested that NGOs
237
Marina Kurkchiyan writes that “neither the optimism nor generosity [of social movements] last very
long” and that “they need to be quickly channelled into the constructive reforms by honest, educated and
determined leaders.” For example, she suggests emphasising “ethical values against corruption,” which
was a key part of a successful corruption reform program in Hong Kong. Curbing corruption and
unfairness in institutions requires building a legal culture that resists and rejects corruption. LICADHO has
introduced this approach in its work with the legal system by refusing to engage in corrupt practices and
by pressuring judges to abstain as well, using both direct communication and foreign trial monitors. For
more information on practices to curb corruption in the judiciary see Marina Kurkchiyan, “Judicial
Corruption in the Context of Legal Culture” in Corruption and Judicial Systems (Cambridge: Transparency
International, 2007) 99 at 105.
238
Asian Development Bank, supra note 176 at 69.
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provide training in land law, human rights law and forest law for community members
facing evictions.239
Sen also recognizes the danger of parochialism, or taking a narrow perspective, which
can be debilitating in the process of seeking a more just society.240 He encourages the
broadening of horizons and the inclusion of impartial spectators in evaluating justice. In
practical terms, introducing human rights defenders and community networks to others
involved in similar struggles would help expand their understanding of the scope of the
problem, the networks of communities combating it, and the mechanisms being used to
fight. It would also serve as a platform for building a cross-country, if not cross-border,
advocacy movement. Understanding that one is not the only victim is also useful in
combating the victimization and self-defeat that can set in after continued years of
abuse. The Asian Development Bank corroborates this view, noting that one of the
essential features for legal empowerment is cooperation between civil society and
community-based organizations,241 and that the first necessary condition for successful
legal empowerment is a vibrant civil society.242
Communities could integrate Sen’s comparative approach into determining what
qualifies as access to justice. In particular, communities could look at other processes
for resolving land rights disputes. While these mechanisms may not provide the degree
of justice desired by communities, they may represent the attainable goal of a more just
society, and serve as a stepping-stone to larger institutional reforms. An exploration of
additional access to justice measures could include the training of paralegals at the
community level. These legally trained laypersons can assist with gathering evidence
for a case, processing claims at the Cadastral Commission, appearing in front of
tribunals or in alternative dispute resolution forums and furthering legal and rights based
education among community movements. The Asian Development Bank notes: “In view
of the central importance of community-specific work in legal empowerment, paralegals
assume particular significance in some societies.”243 While they can be expensive to
train, paralegals have filled the gap “created by the shortage of lawyers dedicated to
legal assistance and the vast numbers of disadvantaged who may not have the time,
inclination or aptitude to make use of specialized training.”244
Sen’s perspective on understanding justice also underlines the importance of having
donors offer more support to grassroots networks that can define and embrace the
239
Suy, supra note 81.
Idea of Justice, supra note 5 at 130.
241
Asian Development Bank, supra note 176 at 72.
242
Ibid. at 86.
243
Ibid. at 82.
244
Ibid.
240
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struggle for access to justice. He writes: “In the pursuit of justice, positional illusions can
impose serious barriers that have to be overcome through broadening the informational
basis of evaluations.”245 Moreover, “Judgments about justice have to take on board the
task of accommodating different kinds of reasons and evaluative concerns.” 246 Sen
seems to suggest that input from outside bodies could lead to valuable cross-border
networks providing groups with new ideas and tactics. Thus, grassroots networks
should continue lobbying to NGOs and INGOs for financial and political assistance on
the basis that the inclusion of their voices in policy level decisions and international
advocacy efforts is key to the end goal of developing just institutions.
VI. Conclusion
In this article, we explored the concepts of rule of law and access to justice in securing
equitable economic growth. We argued that a thick definition of rule of law is necessary
to secure equitable economic growth. In particular, meaningful access to justice, built on
the legal empowerment of affected communities through the use of sustained social
movements, is required. We conclude by providing a number of recommendations on
how such social movements in Cambodia could be strengthened.
Just as the rule of law is only one factor which affects economic growth in a country, we
argue that the use of popular resistance is part of a complex interplay of issues. While
key, legal empowerment and social movements are not sufficient in themselves to
secure access to justice and consequently equitable economic growth. A number of
other concerns must be addressed simultaneously, in particular, access to basic
services like health care and education. Without meeting these basic needs, as
mentioned above in this article, it is difficult for sustained social movements to happen
at all.

© Dr. Nandini Ramanujam and Siena Anstis 2013
Citation: (2013) 2:1 C.J. Poverty Law 104
245
246
Idea of Justice, supra note 5 at 169.
Ibid. at 395.
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