Thursday, December 15, 2011

COMMENTS ON THE FOURTH DRAFT OF NGOs BY LICADHO GROUP


On Dec. 12, 2011, the Royal Cambodian Government released the fourth draft of its proposed Law on Associations and Non-Governmental Organizations (LANGO). The release comes almost exactly one year after the first draft was introduced in mid-December 20101.

The contents of the three earlier drafts provoked extensive criticism from local and international civil society organizations, donor governments, and legal analysts. Twice previously the government has acknowledged these criticisms and promised to come up with a better draft. Twice previously they have failed. 

With the fourth draft, they have failed again.

Although the law has shrunk by more than 20 articles and contains some notable improvements, it is also now more confusing than ever. Several key provisions raise more questions than they answer, both in terms of the law’s application and the intent of the government.

The law assures, for example, that domestic associations and non-governmental associations (NGOs) can be “freely established” without prior permission from the government, but then denies unregistered groups the legal status that could be essential to their operations. Is registration truly optional?

Community-based organizations (CBOs) are ostensibly exempt from registration provisions, but these groups are so narrowly defined that the CBO category becomes virtually inapplicable in the real world. Is an informal network of forest activists still a “CBO” if they conduct activities outside their commune or sangkat?

So-called CBOs, moreover, are required to provide written notice to commune or sangkat authorities of their activities and their leaders; this provision does not apply to NGOs and associations. Will this process evolve into a de facto registration requirement?

The law establishes three broad categories that appear to encompass virtually every domestic non-profit entity that could conceivably be established in Cambodia. Why establish a new regime of registration – applicable to organizations as diverse as chambers of commerce to large NGOs to networks of environmental activists – when a scheme for establishing and registering non-profit legal entities already exists in the Civil Code?

In a particularly incomprehensible provision, existing organizations are considered to have “abandoned their activities” unless they file a notice with the government declaring their intent to continue operating. How is this reconciled with the law’s claim elsewhere that NGOs can be established without registration?

Meanwhile, several specific problems remain from earlier drafts. There is no administrative appeals process for organizations whose registration is denied; the only appeal is directly to the court, which is known to be influenced by the executive branch. Registration is effective from the date of approval, not the date of filing. And the law does not specify any remedy if the Ministry of 


Interior (MOI) simply sits on an application, refusing to grant or deny it; the applicant organization simply has to wait.

Additionally, the draft no longer discusses registration fees or procedures forming alliances of NGOs; but it does not affirmatively state that there will be no fees or that allowances will be permitted. It is likely that these gaps, like others, will be filled by sub-decrees, which are developed behind the scenes. This robs stakeholders of the opportunity for meaningful consultation on these issues.

This briefing paper focuses on the law’s most serious flaws, which Farmer & Nature Network (FNN), Coalition Cambodian Farmer Community (CCFC), Independent Democracy of Informal Economy Association (IDEA), Cambodian Youth Network (CYN)  and Cambodian League for the Promotion & Defense of Human Rights (LICADHO) have has divided into four separate categories: (1) restrictions on the freedom of association; (2) burdensome registration requirements for some organizations; (3) excessive powers granted to unelected officials of the executive branch;
(4) unreasonable restrictions on foreign NGOs.

In sum, while FNN, CCFC, IDEA, CYN and LICADHO recognize that the fourth draft of the LANGO contains some notable improvements, it should not be enacted. Legitimate questions about the law’s necessity – and the government’s intentions – remain.
II- ANALYSIS OF THE FOURTH DRAFT
This document does not aim to provide an article-by-article critique of the draft law, but to highlight a number of substantial flaws in the law which will affect the independence of civil society in Cambodia.

Significant restrictions on freedom of association
The most alarming aspect of previous drafts – mandatory registration for all associations and NGOs – has been removed from the fourth draft. But the removal is in name only. Registration remains mandatory for most groups. In some instances, this requirement can be considered reasonable. In others, it is clearly not.

Article 5 of the fourth draft states that domestic associations and NGOs “may be freely established without necessarily obtaining permission or prior notice. However, these associations or non-governmental organizations shall not have legal capacity, unless they have complied with the provisions as provided for in Article 7 of this law.” (emphasis added)
The wording of this provision raises several questions, most notably: what does legal capacity mean in this context? In what circumstances is it needed? And what happens if an organization operates without obtaining it?

Legal capacity is not defined in the draft law, but the term presumably implies the creation of a legal entity. Among other things, this allows individuals within an organization to act on behalf of the organization, and not on behalf of themselves. Provisions elsewhere in the law give some clue as to what legal capacity implies, and who needs it: Articles 21-23, for example, give registered organizations duty free import rights, the right to hire staff, and the right to enter into contracts.
FNN, CCFC, IDEA, CYN and LICADHO believe that the need for legal capacity is apparent and acceptable for many NGOs and some associations. These organizations typically need legal capacity to rent premises, enter into contracts with staff members, open bank accounts, sign agreements with donors, represent themselves as an entity, and so on. The only alternative to this is for a staff member to conduct these activities in his or her own name.

However, it is equally clear that a denial of registration by MOI will completely rob NGOs of the ability to operate. Without legal status, an NGO cannot reap the benefits of Articles 21-23, and would be unable to enter into contracts, enter into agreements with donors, hire staff, rent premises, and represent itself as an organization. They may also face criminal sanctions under the Penal Code, as detailed further below. 

For this reason, it is essential that the registration process be simple, neutral, fair and non-politicized. In other words it should be a formality. This issue remains a grave concern in the current draft, and is discussed at greater length below, in the section titled “Excessive powers granted to unelected government officials in the executive branch.”

Mutual Interest Associations, Informal Groups and Networks: Where do they Fall?
While the necessity of registration is relatively clear for large organizations that require legal capacity, the issue is murkier when it comes to small associations, informal groups and networks.
Certain groups may be informal, small and temporary, and therefore may not need to establish a legal entity to hire staff, enter into contracts, rent premises, import goods, and so on. What happens if these organizations do not register? 

The law contemplates a third possible category for these organizations – so-called CBOs, which are defined in Articles 4 and 5. But this category is so narrow that it excludes most existing groups who currently operate in Cambodia.

Article 4 defines such organizations as “a group of Cambodian citizens who voluntarily agree to establish, manage and conduct … activities to serve and protect the interests within its local community.” Article 5 states that CBOs do not have to register, but “shall provide a prior written notice regarding the name of the organization, objectives and … the organizations president to the authorities of the commune/sangkat where they conduct activities.”2

The law does not explicitly define “local community,” but provisions elsewhere clearly restrict CBOs to acting within their own commune or sangkat3 .

This limitation may not prove an issue for some groups, but in reality, many organizations do not restrict themselves to the borders of their commune. They may act in multiple provinces – such as the Prey Lang network, which defines its “community” as a large swath of forest covering parts of four provinces. Other groups may join networks of local activists. Yet the law appears to arbitrarily require them to stay within the confines of their commune. .............continue please link here 
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