Saturday, July 30, 2011

ICNL provide comments on the Third Draft Law on Associations and Non-Governmental Organizations of the Kingdom of Cambodia


Comments on the Third Draft

Law on Associations and Non-Governmental Organizations

of the Kingdom of Cambodia

 

July 29, 2011


The International Center for Not-for-Profit Law (ICNL) is an international organization that provides technical assistance, research, and education to support the development of appropriate laws and regulatory systems for civil society in countries around the world.  ICNL has worked on civil society law reform projects in over one hundred countries; in Asia, ICNL has worked in China, Indonesia, Vietnam, Lao P.D.R., Timor-Leste, Mongolia, and India.  ICNL has worked with the United Nations Development Programme, United Nations Volunteers, the Community of Democracies Working Group on Enabling and Protecting Civil Society, the European Union, the Organization for Security and Cooperation in Europe, the United States Agency for International Development, New Zealand AID, the Swedish International Development Agency, human rights groups, private foundations, and scores of in-country colleagues.
These comments address the third draft of the Cambodian Law on Associations and Non-Governmental Organizations, which was released by the Royal Government of Cambodia on July 29, 2011.  ICNL has reviewed the draft law solely based on a translation[1] of the third draft , and not based on a review of the broader legal framework within Cambodia, such as the Cambodian Civil Code, labor law or other laws. 
ICNL believes that sound legislation is the result of a fully participatory and inclusive consultation process, which provides for constructive dialogue between the government and civil society.  We urge the Government of Cambodia to engage in further dialogue with civil society and to take into meaningful account the views of organizations to be governed by the new law.  ICNL remains concerned by the current draft law and stands ready to provide additional information or technical assistance as necessary and appropriate.

Summary Analysis


The third version of the draft law is little changed from the second version, and most of the fundamental issues of previous drafts remain.

The third draft law does, however, introduce certain limited improvements:

·         The draft law revises certain provisions relating to the registration process.  First, the time period for government review of registration applications is reduced from 90 days to 45 days.  Second, the government is required to notify applicants in writing of problems in the application and to provide applicants with the opportunity to modify the application within a 45-day period.  Third, the government then must review any modified application within 15 days.  Fourth, the draft law provides for the right to appeal.  (Article 17)  Fifth, the draft allows registration at the sub-national level (Articles 14-18).  As noted below, however, the third draft still lacks clear and objective criteria for the denial of registration. 

·         The draft amends certain provisions affecting foreign NGOs.  Under Article 30 et seq., foreign NGOs seeking to implement “aid projects or programs” in Cambodia must enter into a Memorandum of Understanding with the Cambodian Ministry of Foreign Affairs and International Cooperation (MFA).  Article 6 has been revised, however, to state that foreign NGOs operating activities for less than one year need not enter into this Memorandum of Understanding.  These organizations are required, however, to notify the MFA about their “aid projects,” duration of activities, and location.  In addition, Article 33 has been revised to require the government to provide a written explanation if it decides not to support the aid projects of a foreign NGO, though objective criteria to guide the government’s determination are noticeably absent.

The third draft law fails to address several problematic issues included in earlier versions of the draft law, including the following:
·         The draft law fails to ensure that denial of registration is consistent with international law standards.  Article 17 states that the Ministry of Interior or sub-national administrative institution “shall examine the documents and legality of the statute of the association or domestic non-governmental organization and shall decide whether to accept or reject the registration …” It is not clear if the “legality” standard is intended to limit government discretion in deciding to accept or reject registration; it is not clearly presented as the sole basis for denial.  Even if intended as the sole criterion for denial, however, it is not consistent with international law.  It would allow the government to base denial on inconsistency with any provision of law, whether compliant with international human rights law or not.  Denial of registration clearly amounts to interference with freedom of association, and consequently can only be justified where denial is “prescribed by law” (meaning that the law is accessible and that concerned persons are able to foresee the consequences of their actions); and “necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”  The “legality” standard fails to limit government decision-making to the confines of this standard.  The absence of a clear, limited list of objective grounds for denial could have a disproportionate impact on groups that engage in advocacy, support unpopular causes, or are critical of the government. 
  • The draft law prohibits any activity conducted by unregistered associations and NGOs.  (Article 6) Registration is thus mandatory and unregistered groups are banned.  This means that every group of individuals who gather together with a differing level of frequency and perform the broadest variety of imaginable activities, from trekking and football fans, to chess and silk weaving groups, will be acting in violation of law. 
·         The draft law limits eligible founding members of both associations and NGOs to Cambodian nationals.  (Article 4) Consequently, the draft law excludes refugees, stateless persons and others resident in Cambodia from forming associations or domestic NGOs.  This nationality requirement constitutes a clear infringement of freedom of association, which should be available to everyone (i.e., all individuals within the state’s territory and subject to its jurisdiction). 
·         The draft law maintains a high minimum membership requirement for associations.  (Article 8) In order to form an association, 11 Cambodian nationals must be named as members, and at least 5 governing members must handle the registration process.  While the required minimum number of founding and governing members for associations has been reduced from the first draft, the required minimum threshold will likely impede the formation of small mutual interest groups.  A group of 8-10 individuals who wish to associate to pursue a legitimate collective purpose would not be permitted under the draft law to form an association as a legal entity.  The interference is exacerbated where the law, as is the case here, prohibits unregistered groups to carry out activities.     
·         The draft law seems to provide inadequate standards to guide the government’s determination of suspension or termination of an association or NGO.  Chapter 8 of the draft law states that involuntary termination may result through a court’s judgment, but there are no grounds for involuntary termination included in Chapter 8 to guide the court’s decision-making.  Chapter 9 includes some penalty provisions, but it is unclear (at least in translation) if this chapter provides an exhaustive list of reasons why an association or NGO may be suspended/terminated.  It is important that the draft’s provisions governing suspension/termination be clear, objective, and consistent with international law.

·         The draft law places constraints on associations and NGOs through notification and reporting requirements.  Associations and NGOs are required to “provide a written notification to municipal hall or concerned provincial halls …” when implementing activities in a given locale.  (Article 43)  This requirement, which is separate from and additional to the registration process, could amount to a substantial burden on program implementation.  In addition, all associations and NGOs, large and small, domestic and foreign, are subject to the same reporting requirements; for small mutual interest associations in particular, compliance could be problematic. 

·         The draft law erects barriers to the registration and activity of foreign NGOs.  Among other issues, the draft law outlines a heavily bureaucratic, multi-staged registration process, which lacks procedural safeguards, and is therefore subject to delays and subjective, arbitrary and politicized decision-making.  (While the current draft provides relief to those foreign NGOs seeking to operate for less than one year, the burdensome registration process applies to all other foreign NGOs.)  In addition, the draft law requires mandatory collaboration with the Government of Cambodia, by stating that a foreign NGO “shall collaborate with relevant partner ministries / institutions of the Royal Government of Cambodia when developing projects, monitoring, and evaluating the implemented activities or results.”  (Article 36)  Thus, there appears to be no room for foreign NGOs to act independently of the Government in addressing public benefit goals or community needs. 


[1] ICNL has relied on the unofficial translation provided by the Office of the High Commission for Human Rights (OHCHR) on July 29.  We extend our appreciation to OHCHR for the translation.



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Friday, July 29, 2011

Third draft of NGOs law were issued today

Dear all

The third draft law of NGOs were handed CCC today. The contain is still remain similar the first draft. We recommend that the article 6 of this law shall be deleted because it's abused the international principle.


Please link here for Khmer version and click here for  English version. We would like you to give the idea on the third draft law.


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Wednesday, July 27, 2011

Procedures for the Inspection of Draft Laws and Legal Regulations

Procedures for the Inspection of Draft Laws and Legal Regulations 

Council of Minister notices that so far the draft laws and legal regulations has to go through four 
stages: the first stage is the initiatives and the development of the first draft by the principal ministries or institutions; the second stage is technical meeting; the third stage is coordination meeting; and the fourth stage is the plenary meeting. 

In order to promote the quality of laws and legal regulations and to ensure that adequate 
documents are available for plenary meeting of ministers, Council of Minister put forward additional guidelines for the inspection of draft laws and legal regulations that ministries and institutions have prepared and submitted and the guidelines are as the followings: 

1. Technical meeting, which is the first meeting, shall be divided into two or three technical 
meetings for discussion provided that many documents need to be drafted. With a deputy 
secretary general of Royal Government, the representative of the cabinet of His Excellency 
Deputy Prime Minister and Minister of Council of Minister, and the representatives of principal 
ministries and institutions, each meeting shall be chaired by the chiefs of councils of economy, 
social affairs, and culture or the representatives and the deputy chief of Council of Jurist or the 
representative as co-chairman and secretary of state of Council of Minister as honored guests in order to discuss on the drafts of document related to political situation, legal situation,  economic situation, social affairs, and culture; and share opinions on situations and information and analyze the impacts of the draft laws and legal regulations as well as inspect and modify the 
formality, meanings, terminology, and spelling. 

The draft documents that are seriously inappropriate in term of meanings and formality shall be 
put forth during technical meetings for discussion and modification so that the documents could 
be resubmit to the technical meeting and get approval accordingly. 

In case that the personnel at the executive level is busy or has other obligations and could not 
attend the meeting, the personnel shall appoint a representative that has the appropriate status 
to chair the meeting. 

2. Inter-ministerial meeting, which has Deputy Secretary General of principal ministry and  institution of Royal Government, a representative of cabinet of His Excellency Deputy Prime  Minister and Minister of Council of Minister, a representative of Council of Jurists, representatives of councils of economy, social affairs, and culture, and the representatives of  the participating ministries and institutions, shall be chaired by Secretary General or the First Deputy Secretary General of Royal Government and Secretary of State of Council of Minister  that is in charge of principal ministries and institutions as co-chairman, and a secretary of state  as honored guest. In this meeting, the representatives of ministries and institutions could add  more comments on the political situation, legal situation, economic situation, social affairs, and  culture as well as discuss and coordinate the disagreed aspects such as the overlap of duties or  the missing gap of the duties in each sector or cross-cutting sector including both technical and  administrative sectors so that they align with policies, laws, and legal regulations so as to ensure alignment and quality of the draft of these documents. 

In case that the personnel at the executive level is busy with other obligations and could not 
attend the meeting, the other personnel at the executive level shall chair the meeting. Provided 
that all personnel at the executive level are absent, they shall report to His Excellency Deputy 
Prime Minister and Minister of Council of Minister so that representatives could be appointed. 
The draft of the document shall be discussed and finalized during the two meetings above. 
Provided that there are some issues that are complicated and could not be coordinated, Co-
Chairman of the meeting shall report directly to His Excellency Deputy Prime Minister and 
Minister of Council of Minister or to the representative of the cabinet of His Excellency Deputy 
Prime Minister and Minister of Council of Minister in a timely fashion. Special department that is 
responsible for making reports shall write a detailed report regarding the issues that have not 
been coordinated and submit that detailed report to the Co-Chairman for inspection and 
decision making and submit to His Excellency Deputy Prime Minister and Minister of Council of 
Minister as information within no longer than five working days after the day of the meeting. 
After the inter-ministerial meeting, His Excellency Deputy Prime Minister and Minister of Council 
of Minister will be the chairman of the final inspection meeting. 


3. Plenary of ministers of Council of Minister that has member composition that include ministers, secretary of state that is the head of the institution upward, delegate ministers of Prime Minister and the representatives of important relevant specialized units taking part in the discussion and decision making of all the draft laws and legal regulations under the  chairmanship of Prime Minister or Acting Prime Minister every Friday. 

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Tuesday, July 26, 2011

Third Draft of NGOs law will be passed by Inter-ministries technical working group of Council of Minister Soon!!!!!!!


Today July 26, CCC announced to have an urgent meeting with its member of NGOs to discuss about the 3rd draft of the NGO Law which were handed Prime Minster hands and will soon be reviewed by the inter- ministries technical working group (tentative date: 29th July).



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Tuesday, July 5, 2011

Law on Implementation of Civil Code in Cambodia

The below is quotation article from person who analysis about the Civil Code in Cambodia.

As you know ready the Civil Code was passed by National Assembly since 2007 but it was not enacted because it needed many laws to support it such as the law on bailiff, law on notary and so on…however even those laws have not been adopted yet, the Civil Code still go forward.
By waiting for along time, in April 2011, the national Assembly of Kingdom of Cambodiaadopted the law on Implementation of Civil Code in Cambodia  and Senate agreed the whole content since May 2011 and then the King sign to announce to use this law on May 31, 2011 but it’s under the condition that it would be enforced after six month from the signature after the Royal Government of Cambodia disseminate this law to relevant institution and people (Article 84: date for implementation of the law).
The Civil Code is seemly unconstitutional law because in the Cambodian constitution stated in article 93 New (As amended March 20009) that “Any law approved by the assembly and finally reviewed by the  Senate and signed by the King for its promulgation shall go into effect in Phnom  Penh ten days after its signing and throughout the country twenty days after its  signing. Laws that are stipulated as urgent shall take effect  immediately throughout the country after promulgation. Laws that are signed by the King for its promulgation shall be  published in the official journal and announced it to the public throughout the  country”. However, it is a new context of law progress in Cambodia. Let see together.
If you want to understand more on it please link here in Khmer and English.

Law Journal of Civil Study in USA

The Center of Civil Law Studies (CCLS) was established in 1965 to promote and encourage the scientific study of the civil law system, its history, structure, principles, and actualities. Its purpose or mission is to facilitate a better understanding and further development of the private law of the State of Louisiana and other civil law jurisdictions, particularly those of continental Europe and Latin America, through theoretical and practical activities, such as publications, translations, sponsorship of faculty and student exchanges, visiting scholars, seminars, and lectures. The Center of Civil Law Studies promotes legal education by sponsoring foreign students who wish to avail themselves of the opportunity of studying a mixed legal system and American students who wish to expose themselves to other legal systems. Such programs take advantage of Louisiana's natural position as an education center for international and comparative legal studies.

The LSU Law center issued its research book related to Law Journal of Civil Study in USA. If you want to study more those articles please link here https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B3LzPsPRNUiwOGEyNGU5MzEtNmQzNC00MjBmLWI1MzItZTY3MTg1OGY5ODg1&hl=en_US

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