Thursday, December 16, 2010

Analysis of Draft NGO Law

Analysis of Draft NGO Law
1. Various articles
a. Frequently refers to NGOs’ “aid projects or programs” or working in the “public interest”; may indicate reduced areas in which organizations will be permitted to operate
2. Article 8
a. Requires 21 member and 7 leaders for associations
3. Article 10
a. Requirements for charter are burdensome, particularly for new, small or provincial NGOs, and exceed those in Civil Code Article 50. For example:
i. Must detail the structure, mandate, role, duty, organization and function of the applicant’s governing bodies
ii. Must include technical documents, such as the rules of resource and property management, and the rules of dissolution and administering of resources upon dissolution
b. May be impossible for applicant to open bank account until association/NGO is registered
4. Article 17
a. Does not include the factors that should be considered by MoI when deciding on an application
b. Does not provide that associations/NGOs will be registered if MoI fails to rule on application w/in 45 days
c. No appeal of registration denial provided
5. Article 21
a. Unclear when an alliance must be registered
i. For example, it is unclear whether an alliance needs to be registered if two NGOs wish to work together to support a single court case or a single advocacy campaign
ii. Unclear if provisions apply only to formal entities such as CCC or Community Peace Network, or also when two associations work together on an issue of common concern
b. Unclear whether registration of alliance has an effect on legal status of underlying organizations
6. Article 27
a. Unclear under what circumstances alliances must give notice to MoI of projects.
7. Article 30
a. “Budget equivalent” is an unclear term
b. May be impossible to open bank account until NGO is registered
8. Article 32
a. Does not provide that associations/NGOs will be registered if MoI fails to rule on application w/in 45 days
b. No appeal of registration denial provided
9. Article 36
a. Depending on how “collaborate” is interpreted, foreign NGOs may already have this obligation pursuant to MoFA’s MoU:
i. Official translation of MoFA’s MoU requires that foreign NGOs: “Work[ ] in close consultation with counterpart government institutions and local authorities to implement the approved projects or programs In particular, require[d] to inform counterpart while assigning a consultant to work in the field or request visa extension for an expert to complete the job”
ii. Khmer text of MoFA’s MoU requires foreign NGOs to “Work in close consultation and collaboration with counterpart government institutions and local authorities…”
iii. Article 5 of MoFA’s MoU “authorizes” a foreign NGO “to collaborate directly with its Cambodian relevant Ministries and other Government Institutions concerned for the purpose of the project planning implementation, monitoring and evaluation”
b. If the RGC requires close collaboration between foreign NGOs and Cambodian ministries, it will likely be problematic:
i. Will severely delay the work of NGOs
ii. Some ministries might think Article 29 authorizes them to dictate how a foreign NGO works or spends its money
c. Requires registered NGOs and associations to inform the municipal or provincial government if it will be conducting activities in the jurisdiction
i. Provincial or municipal authorities may use this information to regulate or limit NGO activities
10. Article 39
a. “Administrative expenses” is an unclear term
b. Current MoU with MoFA defines “administrative expenses” narrowly and only requires that “average administrative expenses” not exceed 25%
11. Article 41
a. Requires that Cambodian staff be employed to “the maximum extent possible”
i. Same requirement is in MoFA’s MoU, as well as the Labor Law
ii. Combined with Article 39’s requirement that foreign NGOs limit their administrative budget to 25%, this could require that foreign NGOs eliminate some international staff
12. Article 44
a. Requirement that NGOs notify MoI/MoFA every time it changes the status of any employee is unduly burdensome. Requirement should only apply to those employees listed in registration packet.
13. Articles 49 and 50
a. Does not state on what basis a court may postpone or terminate the activities of associations or NGOs
b. Provides no criteria for evaluating whether postponement or termination should be imposed
c. Does not provide for an appeal of the determination that there was a violations
d. Could be selectively applied to entities the government considers unfriendly
e. Appears to violate the provisions of Civil Code Articles 64-65, which specifies the limited bases on which a court may order the dissolution of a juridical person
14. Article 52
a. No guidelines are given as to how the court should distribute the assets of an association or NGO dissolved by court order; could create an incentive for the state to dissolve an association/NGO if it has valuable assets
i. The value of the property reverting to the state should not exceed the value of the exemptions the organization received
ii. Only assets obtained with the assistance of tax exemptions should revert to the state
iii. Funds or property still belonging to foreign donors should be repatriated, instead of being distributed according to the organization’s charter or reverting to the state
15. Article 53
a. Unlike the limited provision regarding domestic NGOs, it appears that a foreign NGO is permanently prohibited from operating for even minor violations of Article 46’s reporting requirements.
16. Article 55
a. Does not include a requirement that the government notify registered NGOs or associations of their obligation to reapply.
b. Unclear on what bases MoI may deny a NGO’s renewal application, or if there is any appeal from such a denial; which could allow discrimination against disfavored associations and NGOs
c. Also unclear how much time MoI has to decide on the renewal application

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