Monday, September 12, 2011

Weekly Legal Analysis on Freedom of Association and Expression


Introduction:


From Monday to Sunday, Sept 4-11, 2011, there were many events happened in Cambodia, but Law Journal of Cambodia (LJC) would like to address two issues: 1- Progress of NGO Law, 2- Freedom of Expression 

1. Progress of Draft Law of NGOs

As you may see in LJC website dated Sept 5, 2011 that the Law of NGOs (LANGO) was discussing at legal team of Council of Minister and now this law were returned to Minister of Interior but based on Cambodia Daily released on Sept 10-11, page 11 quoted the spokesman of council of minister that the LANGO was under the hand of council of minster, it was not returned to MoI. Council of Minister had its full authorization to revise or not amend the content of the draft.

Through information from RFI, RFA, VoA and CCC and LICADHO showed that the draft law were revised.  The draft was changed some contents such as 1) Registration to mandatory to those who never register, 2) article 13 deleted (mandatory registration) , 3) Report to be kept of NGOs/associations and be valuable when require 4) clearer articles on how sub-national register small NGOs, 5) some kind of lexicon will be added. However, we didn’t know clearly whether the ministry of interior (MoI) changed on the above matters or not.

If LANGO was revised above mention, the draft still has a consequence for exercise rights of people which guarantee by Cambodian Constitution and international covenant. It would be discriminated against new and old organization. The law shall treat equal for all people. Why the changing was provided priority to existent NGOs/Associations who ever been registered?. As you see in the Cambodian Constitution, the people shall be equal before the law (article 31-2).

By the ways, LANGO should be volunteered registration because it’s type of nature for the people as well. For example, when a person who was born but his mother forgot to register his birth certificate at the commune council, does his activity illegal when he enter into contract with other people in the society? The answer “NO”….even he had on birth certificate, he still have right to do something. If it compares this issue with LANGO, it thought that if the group of people or property wants to get legal entity, they can volunteer to register in order to benefit from the law such tax exemption. Law on taxation in 1997 state in article 9-1 (B) about beneficiary for non-profit organizations does not need to pay income tax. Therefore, the group of people or organization/association who want to get such benefit they automatically go to register by themselves. If such group of people don’t want to register as legal entity, they cannot get any benefit from the law so such group can be taxed their income.

In textbook of John Bell “French Constitutional Law”, 1992 page 273 stated clearly the content of France Constitution “…… by the virtue of this principle, associations may be formed freely and can be registered simply on condition of the deposition of the prior declaration; that thus, with the exception of measurers that may be taken against certain types of association,………the validity of the creation of an association cannot be subordinated to the prior intervention of an administration or judicial authority…., even where the association appears to be invalid or to have an illegal purpose.” Therefore, the group of people are allowed to volunteer registration.

2.  Freedom of Assembly

Recently events were stirred NGOs and Associations in Cambodia in which made them unhappy with government that use its over power of the law provided. Some NGOs such as Samakum Teang Thnout (SST) were suspended activities for five months because the government accused SST incited people to protest against government’s policy development of Railways project which were fund by ADB and another case was relating orphan organization in Siem Reap provinces were closed its office because of accusing the member of board director slept with orphan.

By the ways, in early this month Cambodian Center for Human Rights (CCHR) were banned to do seminar on land rights by police arm force of deputy governor of Sandan district, Kampong Thom province.

2.1- Government suspended and dissolves Association

Why the government doesn’t use the legal means to attack against NGOs activity that committed illegal act?

In Civil Code and Law on Implementation of Civil Code provided authorization to Minster of Justice to issue its warning letter to the legal entity. If such organization still not corrects its activity, the Minister of Justice can file a complaint to court to delete such association from the list, please read article 65 paragraphs 3 of Civil Code.  However Civil Code is not entered into force yet so Minister of Justice cannot use his or her authority to do that.

Nowadays NGOs are under the authority of Ministry of Interior (MoI), if MoI wants to suspend the NGO activity, MOI can file a complaint to Court to suspend such NGOs activities based Code of Civil Procedure of article 531 paragraph 3 (provisional disposition for establishing of provisional status) “Disposition establishing a provisional condition until a judgment becomes final and conclusive, where this is necessary in order to avoid significant damage or imminent risk [to the creditor] in relation to the right in dispute”. For more information regarding the procedure of Preservative Relief Ruling, please read from page 193 of Textbook on Compulsory Execution and Preservative Relief, published by Ministry of Justice of Cambodia, 2009. Please download this book in Khmer version, if you need for your reference.

The organization that received the order of suspension activities from MoI, it still has right to make objection against such decision by filing a complaint to court of first instance based on article 38 and 128 new (Old article 109) of Cambodian Constitution.

The above decision it’s thought that it’s unconstitutional because based on article 42 of constitution in 1993 provided freedom of association. Cambodian people also enjoy their freedom of association base on ICCPR, ICESR and so on (article 31 constitution).

In conclusion, the government cannot resolve judicial person by its own authority without filing its complaint to court. in the rule of law principles, the government authority shall follow the law state.

2.2- Disturbance or interference NGOs' activity

Recently, Cambodian Center for Human Rights (CCHR) and the Natural Resource Protection Group (NRPG) organized training on land rights in Sudan district, Kampong Thom province, were banned activity by deputy district governor accompanied by police armed with AK-47s. The reason that the authorities stopped those NGOs activities because they accused that those organization were not got any approval from authority and this training can be leaded for inciting government development in the region.

There was no legal background for supporting allegation of Sandan district authority to ban NGOs activities over there.

In Cambodian constitution and international covenant provided freedom of association and assembly for people.

The state must guarantee that activities of NGOs are not impeded by national or local authorities without legal justification. For example, local authorities cannot, without good and proper cause as defined in the constitution and international covenants to which Cambodia is a signatory member, intervene in or prohibit a seminar or public forum organized by NGOs.

As noted above, international law has placed on states the obligation to ensure that the rights enshrined in international law (the Universal Declaration, ICCPR, etc.) are protected:

United Nations Charter, Article 56: All Members pledge themselves to take joint and separate action in co-operation with the Organizations for the achievement of the purposes set forth in Article 55

ICCPR, Article 2: (1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind … (2) … each State Party … undertakes to take the necessary steps … to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

ICESCR, Article 2: (1) Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

U.N. Declaration on the Right to Development, Article 6: All states should co-operate with a view to promoting, encouraging and strengthening universal respect for and observance of all human rights and fundamental freedoms for all...

Vienna Declaration and Program of Action 89: Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of government.

U.N. Defenders Declaration, Article 2: Each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all  conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice.

Conclusion

In a state governed by the rule of law it is essential that NGOs should be entitled, in the same way as other legal entities, to challenge decisions affecting them in an independent court which has the capacity to review all aspects of their legality, to quash such decisions where appropriate, and to provide any consequential relief that might be required. Any act or decision affecting an NGO must be subject to the same administrative and judicial supervision as is generally applicable in the case of other legal entities. There should be no need for special provisions to this effect in legislation on NGOs.

In light of this body of international law, the government is not only bound to refrain from interference with human rights and fundamental freedoms, but also has a positive duty to ensure respect for human rights and fundamental freedoms, including the freedoms of association and expression, among others. This duty includes an accompanying obligation to ensure that the legislative framework for civil society is appropriately enabling and that the necessary institutional mechanisms are in place to ―ensure to all individuals recognized rights. An enabling legal framework will help create an appropriate environment for an NGO throughout its life-cycle. Necessary institutional mechanisms could include, among others, a police force to protect people against violations of their rights by state or non-state actors and an independent judiciary able to provide remedies.
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