Consolidated Report on the
Third Draft of the
Law on Associations and NGOs in Cambodia
5 August 2011
NGO Law Task Team
1. SCOPE OF REVIEW
This review covers only the third draft of the Law on Associations and Non-Governmental Organizations (“NGO Law”) released by the Ministry of the Interior to the public on 29 July 2011, the 1993 Constitution of Cambodia, the Civil Code of Cambodia, and international documents and protocols, such as the Universal Declaration on Human Rights, the International Covenant for Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. The review also refers to the 2007 Civil Code, which will enter into effect later this year and also sets out a detailed registration scheme for non-profit entities and other groups.
The review is based on an analysis of the third draft of the NGO Law by international and domestic NGOs operating in Cambodia, foreign NGOs operating outside the country, and local and international associations, including: Cambodian Center for Human Rights, Cambodian League for the Promotion and Defense of Human Rights (LICADHO), Cooperation Committee for Cambodia (CCC), East-West Management Institute, International Center for Not-for-Profit Law and The Asia Foundation. Discussions and debates were facilitated by the NGO Law Core Group hosted by CCC.
2. SUMMARY OF REVIEW
The third draft introduces limited improvements over the second draft of the NGO Law. Despite those limited improvements, however, the fundamental defects of the previous drafts remain unchanged. Most notably, the draft NGO Law continues to improperly restrict citizens’ freedom of association, a right guaranteed by the Cambodian Constitution.
The primary defects in the third draft are as follows:
2.1 Involuntary Registration and Re-Registration: The Cambodian Constitution provides the foundation for freedom of association, and expressly grants Cambodians the right to “participate actively in the political, economic, social and cultural life of the nation.” It is therefore improper for the draft law to require that citizens wishing to associate form a specific type of association, or to require that 11 citizens join together before an association can be formed. In accordance with the spirit of the Constitution, registration should only be required for domestic NGOs and associations that wish to gain status as a legal person and/or take advantage of the benefits of registration, such as the ability to import materials tax-free. The law should be expressly voluntary for all other domestic NGOs and associations, particularly small community-based groups where members work together on issues of common concern. Requiring registration of these small groups will have a severe negative impact on the delivery of development aid to Cambodia. In addition, the procedure for registration of domestic NGOs and associations should be simplified, and incorporate the Civil Code provisions on registration instead of establishing conflicting procedures.
2.2 Absence of Guidelines for Deciding on Registration: The draft law does not provide sufficient guidance as to the basis on which an association or NGO may be denied registration or a memorandum of understanding. A clear, limited list of objective grounds for denial should be provided, as well as a transparent process by which the relevant ministries will decide on applications. In addition, although foreign NGOs denied the right to implement projects are entitled to a written explanation of the reasons for denial, the law does not provide domestic NGOs or associations with a similar right. Conversely, domestic NGOs and associations denied registration are entitled to appeal that denial in court, but there is no right of appeal provided for foreign NGOs; further, there is no timeline for an appeal by domestic NGOs and associations. Both domestic and foreign entities should be entitled to a written explanation in the case of denial. In addition, in the case of denial both domestic and foreign entities should be clearly entitled to an expedited appeal in court, and to remain operational as an unincorporated association or non-governmental organization while the court proceeding takes place. There should also be a provision for automatic registration if the responsible ministry fails to rule on a registration application within the stipulated 45 working days.
2.3 Inadequate Standards for Suspension and Dissolution: The draft law provides for involuntary suspension or dissolution of an association or NGO, but provides neither the grounds on which such penalties may be imposed nor any guidance as to the circumstances under which the penalties should be ordered. The draft law also fails to provide any clear right to appeal a decision of suspension or dissolution. The provisions governing suspension/dissolution should be made clear, objective and consistent with international law, Cambodia’s Civil Code and the new Penal Code. A right to appeal suspension/dissolution should also be clearly provided. In addition, as neither the failure to submit a report nor engaging in activities beyond the scope of an organization’s statute qualify as a crime, the suspension of an association or non-governmental organization for these acts is not permitted under the Penal Code. Finally, the provisions governing suspension fail to provide courts with guidance as to how the assets of the entity should be distributed. Suspension and dissolution, as well as the distribution of properties, should be made consistent with the organization’s charter, donor requirements and provisions of the Civil Code. A written warning system for violations should also be incorporated.
2.4 Excessive Reporting and Notification Requirements: The draft law’s reporting and notification requirements are excessive, and particularly burdensome for smaller or new organizations. The law should incorporate a system of reporting that takes into consideration the size and budget of the organization. The system could include an exemption for smaller organizations; simplified requirements for mid-sized organizations; and more detailed requirements for those organizations with sizable staff and budgets.
2.5 Barriers to Operation of Foreign NGOs: The process by which a foreign NGO enters into a memorandum of understanding is heavily bureaucratic and multi-staged, and lacks procedural safeguards. In addition, the draft law requires mandatory collaboration between foreign NGOs and the Royal Government of Cambodia, limiting the ability of foreign NGOs to act in addressing public benefit goals or community needs. Finally, as noted above, the law does not provide foreign NGOs with a right to appeal the denial of a request for issuance or renewal of a memorandum of understanding.
2.6 Absence of Glossary and Explanatory Notes: Clarification of various terms in the draft law is needed; the law should incorporate a Glossary of Terms at the end of the law as well as Explanatory Notes for every article.
3. DISCUSSION
3.1 National Context
The Cambodia Constitution recognizes and respects human rights as stipulated in the UN Charter, the Universal Declaration of Human Rights and the covenants and conventions related to human rights (Article 31). As noted above, the Constitution also provides the foundation for freedom of association (Article 42), and expressly grants Cambodians the right to “participate actively in the political, economic, social and cultural life of the nation” (Article 35).
3.2 Limited Improvements in Third Draft
The draft law revises certain provisions relating to the registration process for domestic entities. First, the time period for government review of registration applications by domestic associations and NGOs is reduced from 90 days back to 45 days, as in the initial draft. Second, the government is required to notify domestic applicants in writing of problems in the application and to provide applicants with the opportunity to modify the application within 45-days. Third, the government must review any modified domestic application within 15 days. Fourth, the draft law provides for the right to appeal for domestic applicants. Fifth, the draft law allows registration of domestic entities at the sub-national level, if the Ministry of Interior delegates its authority. As noted below, however, the third draft still lacks clear and objective criteria for the denial of registration.
The draft law also amends certain provisions affecting foreign NGOs. Foreign NGOs seeking to implement “aid projects” in Cambodia must still enter into a memorandum of understanding with the Ministry of Foreign Affairs and International Cooperation (MoFA). However, Article 6 has been revised so that foreign NGOs operating activities for less than one year need not enter into a memorandum, but may instead notify the MoFA about their “aid projects,” duration of activities, and location. In addition, Article 33 has been revised to require the MoFA to provide a written explanation if it decides not to support the aid projects of a foreign NGO, though both objective criteria to guide the government’s determination and the right to appeal MoFA’s decision in court are noticeably absent.
3.3 Recommendations
Civil Society actors in Cambodia understand the government’s need for a legal framework to ensure the stability and security of the country, as well as to ensure that development and humanitarian aid is delivered effectively. However, this legal framework already exists under the Civil Code, Penal Code and other Cambodian laws and regulations. Further, any such framework needs to ensure the freedom of citizens to engage in law-abiding activities without undue restrictions or burdens.
Recommendation 1:
That registration only be required of those domestic NGOs and associations that wish to take advantage of the benefits of registration, not mandatory for all.
Recommendation 2:
That the registration of NGOs and associations be truly accessible, with clear, speedy, apolitical, and corruption-free procedures in place.
Recommendation 3:
That the law explicitly articulate a transparent process for the evaluation of registration applications, and that the denial of registration be in writing and occur within a reasonable timeline. The appeal process should be explicit, including both an expedited process that permits operations during the appeal and objective legal standards for review.
Recommendation 4:
That Articles 44, 46 and 48 exclude or simplify reporting procedures for small, provincial, community-based development organizations and alliances.
Recommendation 5:
That foreign NGOs be encouraged but not mandated to collaborate with the Royal Government of Cambodia, and be explicitly given the right to appeal the denial of a memorandum of understanding.
Recommendation 6:
That the law incorporates a Glossary of Terms, as well as Explanatory Notes for every article.
3.4 Conclusion
As written, the draft NGO Law will have a severe, negative impact on domestic NGOs and associations and foreign NGOs, and will hinder the delivery of development aid to Cambodia. Valuable public services will be curtailed, development at the community level will be stunted, and poverty and corruption will increase.
Moreover, the draft NGO Law will impact the government’s own programs. The ambiguity of terms as well as complex registration and reporting requirements will create a burden for the government agencies responsible for administering the new regulations, especially the Ministry of the Interior and the Ministry of Foreign Affairs and International Cooperation.
It would be to the advantage of the government, and the Cambodian citizens in need of aid, to make registration optional for domestic NGOs and associations, to simplify and clarify processes, and to define terms.
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