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SUBJECTS, OBJECTS AND FORMS OF LAND OWNERSHIP IN KYRGYZSTAN: CHALLENGES AND PROSPECTIVE1
Ammar Younas AA, BA(Hons.), LLB, MD, MSc.
Kyrgyzstan, Bishkek, International Academy of Management, Law, Finance and Business
ABSTRACT_
In Kyrgyzstan, Legal transactional reforms like state owned property to private property was delicate area which was neglected since 1999 when the first efforts were made to recognize the property ownership. People were not prepared for this new system of land ownership. Kyrgyzstan had to establish a new land registration agency (Gosregister) by training staff with new duties and to process a new transaction at psychological level of it's populates. Starting from its independence in 1991, Kyrgyzstan has introduced a number of reforms in the area of land legislation but none of these meet with the demands of progressive world, especially in terms of Human Rights. This thesis highlights some of the challenges faced by the current land legislation system and provides recommendation for its improvement. This thesis argues that there is a need to introduce legal reform for tackling the issues likes subsoil land, irrigation system, grazing land, property pledging, women's property rights and land rights of indigenous peoples.
Introduction:
After decades of Soviet dominance, along with the political changes, Kyrgyzstan had to do adjustment in almost all spheres of life. Social and political transactions from, socialism to democracy, from no religion to Islamization, from Russian as state language to Kyrgyz as state language and economical transition from plan to market economy, has demonstrated very successful outcomes. It has been a tragedy for post-colonial and post-communist states that they have to build their social, political, legal infrastructures on the foundations build by their colonial and communist governments. Kyrgyzstan has to take a start from the previously established legal framework. In the times of Soviet Union, the property was the belonging of the state and to privatize it in the post-communist Kyrgyzstan was one of the biggest challenges which Kyrgyz legal system has to face.
During 5 decades of Soviet dominance, citizens were not allowed to claim any land ownership as it was one the principle of the communism that land belongs to everyone. After the independence of Kyrgyzstan, the newly established state was facing two big challenges. First, to successfully cross the transnational barrier from communism to democracy and secondly, to demonstrate its benefits to the world by painting an image of an economically developed state. It was only possible, if people got freedom and ownership of land. "The problem was that how to register the land and keep its record. To overcome this problem, Kyrgyz government made a new land registration agency named as "Gosregister". For the purpose of land registration, the newly established agency has to hire new staff and provide them training for their new responsibilities, establish performance management and funding structure, improve efficiency by introducing new technologies and ensure that staff didn't engage in corruption." (1)
While focusing on these administrative and temporal issues, the main issue of legal reforms was completely ignored. State's main focus was on providing the mechanism and setting the machinery for its working but no one cared about the blueprints and formulas of its working which were legal reforms themselves.
"The process of land reform in Kyrgyzstan, as in all former Soviet countries, had to move agriculture from the Soviet model of state-owned land and predominance of large-scale farm enterprises to a market-oriented model of privately owned land with predominance of small land medium-sized family farms. Land reform accordingly consisted of a two-pronged effort: (a) change in
1 This extended abstract of the thesis was written for the partial fulfillment of the requirement of the Specialist Degree in Jurisprudence or to obtain the qualification of "Lawyer"
ARTICLE INFO_
Received 7 June 2017 Accepted 15 June 2017 Published 5 July 2017
KEYWORDS
Legal Reforms, Transnational Legal Systems, Property Law, Land Ownership, Human Rights
© 2017 The Author.
legal ownership of land from state property to private property (privatization); (b) shift in farming structure from corporate to individual farms (individualization). To the extent that large corporate farms continued to exist for various political and pragmatic reasons, their internal organization and management structure had to be radically changed from the old command-economy orientation to compliance with market-economy principles. Kyrgyzstan was the latest among the former Soviet republics to allow private land ownership. While Russia, Ukraine, and Moldova were the privatization trailblazers abolishing the monopoly of the state in agricultural land ownership at different stages between 1990 and 1993, Kyrgyzstan recognized private land ownership as late as June 1998 following a referendum. The referendum resulted in a constitutional change that explicitly allowed private ownership of land, in addition to municipal and state ownership:
Land ... is the property of the Kyrgyz Republic, used as a foundation of life and activity for the Kyrgyz people and enjoying special protection by the state. (Article 4, para 2)
Land may also be in private, municipal, and other forms of ownership ... as determined by law. (Article 4, para 3)" (2)
The consideration of land as a purely material good has raised a number of issues. Kyrgyzstan as a part of modern world is striving for the betterment of human rights situation in the country. Now when Kyrgyzstan has all the machinery to regulate and monitor all the documentation process related to the land ownership, legal system need immediate reforms in the area of land ownership to make it considerable and respectable by the modern legal world.
Issues and Legal Reforms related with Land in Kyrgyzstan:
On legal grounds, Kyrgyzstan is facing some serious problems because of following reasons.
1. There is no proper legislation related to the Subsoil especially when it comes to the question of foreigner investors dealing with natural resources. Recently, civil society and some of the state agencies has question on the working of foreign companies extracting natural resources. The lack of proper legislation allows many companies to violate the land.(3)
2. Land ownership of women is not discussed in any of the legal documents. There is a need to do special legislation related with the land ownership of the women. The issue has been highlighted when some cases of violations of women's rights in villages have been reported. In the villages of Kyrgyzstan, women are not considered for the property when it comes to the question of land ownership. Women must have a right of utilize natural resources and their economic security must be ensured through proper legislation.(4)
3. Agricultural land is classified into two main components: arable land, which is the land cultivated to grow crops, and pastures, the uncultivated component used for grazing animals. Pastures make up 85% of agricultural land in Kyrgyzstan, with arable land accounting for the remaining 15%. Pastures were not subject to privatization and remained state property. Privatization efforts focused only on arable land. The land reform legislation set a privatization target of 75% of arable land, with the remaining 25% to be held in a State Land Redistribution Reserve for future contingencies. The issue of grazing land and ownership of grazing land is not discussed properly which requires a reform.
4. The water management system and irrigation system is facing serious problems. A lot of international NGOs, groups of civil society are involved to ensure the equal and justifiable distribution of water. At international level, there are satellite guided systems which can monitor the distribution of water for irrigation. There is need to provide proper legal guidance by the side of state in this regard.
5. At present, there is no proper legislation for the land ownership of the indigenous people in Kyrgyzstan. Land has a spiritual importance for many people in Kyrgyzstan. Kyrgyz houses many ethnic groups and besides these ethnic groups , there are number of indigenous people who treat their land as a non-material thing. For some people, the importance of land is much more than a material possession because of their historical attachment to this place. Kyrgyz legal system should accommodate the demands of these people as well. (5)
6. At present, Kyrgyzstan has a law on pledging the property. In the absence of any case supported by pledge law, the civil law is observed. According to the Civil Code of the Kyrgyz Republic, immovable property includes land plots, subsoil portions, detached water objects, forests, perennials, buildings, structures, and all objects closely linked to land, i.e., all objects that may not be moved without damage incomparable to their purpose. Banks can pledge the property very easily. If the landowner provides a document from the land registration agency that this land is not pledged, a bank can give loan on it without considering the context and location of that land. There is a need to introduce a special law related to the pledge of property to indicate the properties which can be pledged and cannot be. (6)
Conclusion:
uring last two decades, Kyrgyzstan has proven to be very successful in introducing effective mechanism of land registration and land management. In addition to this, international community has helped Kyrgyzstan in introducing strategic land use planning in urban areas and other community based land activities. Because of the fragmented character of land reforms, the current legal system is unable to accommodate the demands of modern era.
To accommodate the human rights, there is a need to give proper consideration to the social and economic impact of the land reforms. The sustainable development of land and criteria of this century's land administration demands an immediate need to reform the current land laws of the Kyrgyz Republic.
REFERENCES
1. Maya Geiner, Cementing the right of ownership: Land registration in Kyrgyzstan, 19992009. Global Challenges Land, Innovations for Successful Societies.
2. Zvi Lerman and David Sedik, Agrarian Reform in Kyrgyzstan: Achievements and the Unfinished Agenda. FAO Regional Office for Europe and Central Asia Policy Studies on Rural Transition No. 2009-1, September 2009.
3. Law of Kyrgyz Republic on "Protection of Environment", 16 July 1999
4. Land Code of Kyrgyz Republic, 2 June 1999
5. Constitution of Kyrgyz Republic
6. Civil Code of Kyrgyz Republic
