Wednesday, January 12, 2011

Consolidated Summary of Recommendations from Discussion Group Presentations at the National Consultation on January 10, 2011



11th January 2011

NGO Law Task Team
Commissioned by
Cooperation Committee for Cambodia (CCC)


1.      Introduction
The Royal Government of Cambodia (RGC) organized the National Consultation on the draft Law on NGOs and Associations in Cambodia (draft NGO Law) on January 10, 2011.  This report summarizes the comments and recommendations from the four breakout Discussion Groups. 

2.      Summary of general recommendations

The key issues raised in the Discussion Groups are as follows:
2.1  Joint Working Group: All discussion groups firmly recommended the creation of a Joint Working Group, comprised of the RCG and Civil Society representatives to engage in additional consultation after the January 10 National Consultation. Such a mechanism is critically important to ensure further constructive dialogue to achieve greater clarity and mutual understanding on process and contents of the draft law and to avoid any unintended consequences of the law.
2.2  Registration and Re-Registration: All four discussion groups recommended that the procedure for registration of associations and domestic NGOs be simplified and incorporate the Civil Code provisions on registration. In addition, registration should be voluntary for associations and small groups that come together to work on common issues.  Finally, the discussion groups recommended that a provision to require the government to notify organizations of re-registration be incorporated.
2.3  Suspension and dissolution: The discussion groups recommended that suspension and dissolution as well as distribution of properties be made consistent with the organization’s charter, donor requirements and provisions of the Civil Code. In addition, a written warning system for violations should be incorporated.
2.4  Reporting: The discussion groups recommended the incorporation of a system of reporting that takes into consideration the size and budget of the organization.  The system could include an exemption for smaller organizations; a simple template for mid-sized organizations; and a more detailed requirement for those organizations with sizable staff and budgets.
                 2.5  Glossary and Explanatory Notes: The discussion groups recommended clarification on various terms and legal context and therefore, recommended that the law incorporate a Glossary of Terms at the end of the law as well as Explanatory Notes in every article.

3.      TABLE: Specific recommendations


Original Articles
Recommendations
G1
G2
G3
G4
Article 3: Scope                         

-Exclude Associations and small groups.

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Article 4: Definitions
-Define small group associations.

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Article 6: Prohibiting Provisions
-The right to register should be voluntary for Associations. Registering would give the organization non-profit status that would allow it to receive benefits such as tax deductions and protection under the law.
- Currently registered organizations that have submitted applications to re-register should receive provisional approval to conduct activities, which would be revoked only if their re-registration application is denied by the MoI.
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Article 8: Conditions of Formation of Association

-Decrease the required members and leaders.
-Amend article to eliminate the nationality requirement for founding members and to ensure that everyone (i.e., all individuals within the state’s territory and subject to its jurisdiction) is eligible to form associations.
-Include female representatives up to 40%.
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Article 9: Conditions of Formation of Domestic Non-Governmental Organization

-Amend article to eliminate the nationality requirement for founding members and to ensure that everyone (i.e., all individuals within the state’s territory and subject to its jurisdiction) is eligible to form domestic NGOs.
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Article 10: Charter of an Association and Domestic Non-Governmental Organization

-Simplify the registration process in accordance with the Civil Code provisions on registration.
-Clarify what constitutes an association.
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Article 13: Determination of Excise Fees for Registration
-Clarify costs according to the size and scale of NGO with a “Fee Schedule” that varies with size and budget.

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Article 14: Documents for Registering an Association

- Reduce documentation requirements in accordance with the Civil Code.
-Create a tiered registration for registered Associations, with opportunity to register at a local level.
-Clarify the requirement that leaders provide a “profile.”
- The requirement for a letter stating the address of the association’s central office, recognized by the Commune or district chief should be revised so that the Ministry of Interior should notify the commune or district chiefs.
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Article 15: Documents for Registering a Domestic Non-Governmental Organization
-Change this requirement to a letter disclosing the funds that the organization will deposit in a recognized bank within 30 days of registration.
-Delete the requirement of bank letter.
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Article 17: Examination of the Application and Response
- Add clear and limited list of grounds for denial of registration.
- Include provision that if Ministry fails to reach a determination within the required time frame, the application is deemed approved.
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Article 18: Rectification on the Contents and Response

-Specify legal criteria on which applications will be evaluated.
-Provide for right of appeal of denial of registration application.
-Change to “45 working days”
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Article 21: Conditions for Formation of Alliances of Associations or Domestic Non-Governmental Organizations

-Clarify the definition of “Alliance”
-Clarify that an alliance need not be registered if two NGOs wish to work together on an issue of common concern.
-Create a tiered registration for registered Alliances, with opportunity to register at a local level.
-Modify provison so that international organizations can form alliances with domestic organizations.

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Article 23: Documents for Registering an Alliance of Associations or Domestic Non-Governmental Organizations

-Registration of Alliances should be voluntary, as member organizations have already fulfilled the registration requirements.
-- Change the requirement that a letter disclosing the funds deposited in a recognized bank to: “a letter disclosing the funds that the organization will deposit within 30 days of registration.”
-Profile should be required of only Director.
-Same concerns as in Article: 14 and 15



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Article 27: Collaboration Between Associations and Domestic Non-Governmental Organizations

-Clarify that associations and NGOs that do not want to form an alliance may nonetheless still work together on issues of common concern.
-The requirement that MoI be notified when associations or NGOs collaborate should be eliminated.
- Clarify whether it is possible for domestic and foreign NGOs to form Alliances.
-Delete this Article
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Article 30: Documents for Requesting a Memorandum Agreement to Be Submitted by Foreign Non-Governmental Organizations
  

- Clearly define “administrative costs”
-Change “budget equivalent” to “estimated budget” to streamline with current Memorandum of Understandings.
- Change the requirement that a letter disclosing the funds deposited in a recognized bank to: “a letter disclosing the funds that the organization will deposit within 30 days of registration.”
- Eliminate the requirement that notice be given of all staff changes. If deemed necessary, the requirement should be amended so that it only applies to changes to management or other key decision-makers.
- Amend to require that applicants have an address, but not necessarily a central office.
-Instead of collaborating with the Ministry, foreign NGOs should be only required to have an agreement with domestic NGO partner.
-Sub decree issued by Ministry or relevant institution to support the program within 10 days after application.

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Article 32: Examination on the Contents of the Documents and Response

- Add clear and limited list of grounds for denial of registration.
- Include provision that if Ministry fails to reach a determination within the required time frame, the application is deemed approved.
-Same recommendations as in Article: 17





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Article 36: Collaboration Between Foreign Non-Governmental Organizations and Relevant Ministries, Institutions or Authorities
- Need to clarify “collaboration”.
-Change “collaboration” to “inform”
-Delete this article


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a
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Article 37: Initial Validity of a Memorandum and Request for Extension
- Amend article to remove re-registration requirement for foreign NGOs. Or change the length to 3-5 years.



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Article 38: Resources and Properties of Associations or Domestic Non-Governmental Organizations.
-Add to the list of potential resources, “governments” and “The Cambodian Government”


a

Article 39: Resources, Properties and Budget of Foreign Non-Governmental Organizations for Aid Projects or Programs Implementation
-Increase the percentage to 30% of total budget or delete.


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Article 42:  Rights and Interests of Non-Governmental Organizations
-Clarify tax and other benefits to registered organizations



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Article 44: Changing of Names and Logos, Amendment of Organizational Charter, Moving of Offices; Rotation, Termination, Dismissal or Removal of Staff, Members, Presidents or Leaders of Associations or Non-Governmental Organizations
- Eliminate the requirement that notice be given of all staff changes. If deemed necessary, the requirement should be amended so that it only applies to changes to management or other key decision-makers.

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Article 46: Annual Reports of Associations or Domestic Non-Governmental Organizations or Alliances of Associations and Domestic Non-Governmental Organization

- Propose to move the date to end of March or April, not January.
- Revise article to clarify the reporting obligations of domestic associations/NGOs and alliances; consider a graduated reporting requirement that would exempt smaller organizations from reporting, or at least simplify their reporting obligation. Also, base reports on donor reporting requirements.
-Add that the organization will receive a receipt upon submission of report.
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Article 47: Archive of Annual Reports of Associations or Non-Governmental Organizations or Alliances of Associations or Domestic Non-Governmental Organizations
-Reduce requirement to 3 years


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Article 48: Competency to Examine Financial Reports and Properties of Non-Governmental Organizations and Alliances of Association and Domestic Non-Governmental Organizations
-Include procedures/guidelines for audit such as, two- weeks advance notice of the audit and the requirement to conduct the inspection during regular business hours.
-Should be conducted by an independent auditor.
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Article 49: Activity Postponement or Dissolution of the Association or Domestic Non-Governmental Organization or Alliance of Associations or Domestic Non-Governmental Organizations.
- Refer to Civil Code Articles 64-65 for guidelines on dissolution of entities.
-Provide criteria for evaluating whether postponement or dissolution should be imposed.
-Provide opportunity for appeal.
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Article 50: Activity Postponement or Memorandum Termination of Foreign Non-Governmental Organizations
-Same concerns and issues in Article 49.
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Article 52: Distribution of Resources and Properties in Case of Dissolution or Memorandum Termination Through the Court’s Final Judgment
-In all instances of dissolution, distribution of assets should be in accordance with organization’s charter and donor guidelines.
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Article 53: Act of Violation of Article 46

- The penalties for foreign NGOs should be reduced to the less severe penalties applied to domestic organizations.
-Incorporate a written warning system for violations.
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Article 54: Act of Violation of Charter or Memorandum

- Remove the term “serious case”
-Incorporate a warning system for violations.
-Alternatives to criminal sanctions should be provided for, including the revocation of the CSO’s registration, and fines.
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Article 55: Re-registration of Associations and Domestic Non-Governmental Organization or Alliances of Associations or Domestic Non-Governmental Organization

-Include a requirement that the government provides notice of the duty to reapply.
- Clearly define the basis on which MoI may deny a renewal application.
- Limiting the time MoI has to decide on the renewal application to 45 days, just as is provided for the review of initial registration applications. 
-If an organization is in the process of re-registering, they can continue their activities during the process.
-If there are no changes in an organization’s application to re-register, then the organization should only be required to notify the Ministry.
-Re-registration should be open for 6 months.
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-Incorporate a Glossary of Terms
-Develop explanatory notes for every article
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