Cambodia – New draft NGO law would severely restrict the work of human rights defenders

The below is statement of Frontline international which has objective to protect human rights defenders in the world. 
 On 15 December 2010, a new draft Law on Associations and Non-Governmental Organisations (NGOs) in Cambodia was publicly released. The provisions of the draft law are highly restrictive and, if passed, the law could have a severely detrimental impact upon the work of human rights defenders in Cambodia.

The draft law introduces compulsory registration for all NGOs before being allowed to “operate any activity” and imposes burdensome, overly bureaucratic registration requirements on organisations, accompanied by vague provisions which, it is feared, may provide for arbitrary and selective denial of registration and, thus, the criminalisation and/or closure of NGOs and other associations. These provisions would pose particular problems for unregistered grassroots networks, Community-based Organisations (CBOs), and other informal associations who may be unable or unwilling to fulfill the necessary requirements for registration.

Furthermore, the draft bill imposes a duty upon international organisations to “collaborate” with government ministries in the planning, monitoring, implementation and evaluation of their projects. The nature of such “collaboration”, however, is undefined and its necessity unjustified.

It is feared that provisions such as those outlined above, among others contained in the draft law, will severely restrict the freedom and independence of civil society in Cambodia and impede the development and consolidation of a vibrant and democratic political culture. Moreover, the provisions of the draft law are directly contrary to the international human rights norms and standards contained in, inter alia, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Cambodia is party, and the United Nations Declaration on Human Rights Defenders.

Furthermore, while recognising the State's legitimate interest in the regulation of organisations which become legal entities and the prevention of criminal activities, it must be pointed out that such concerns are already adequately addressed by the provisions of existing Cambodian laws and regulations: NGOs may at present obtain legal status through the recently adopted Civil Code, articles 46-118, which provide for the registration of organisations – with less burdensome requirements for doing so – as well as their dissolution; international organisations may also obtain legal status through the adoption of Memoranda of Understanding with the government. The prior existence of such legitimate means of regulating NGOs suggest that the motive for the introduction of the new law is not regulation, but rather the extension of unprecedented and arbitrary government control over the activities of human rights defenders and organisations.

Front Line urges the authorities in Cambodia to:
1. Extend the review process and ensure that an open and thorough consultation is carried out with all relevant local and foreign non-governmental organisations;
2. Guarantee in all circumstances that human rights defenders and non-governmental organisations in Cambodia are free to carry out their legitimate activities in defending and protecting the rights of others, without fear of reprisals and all restrictions, including exclusory registration requirements.

Front Line respectfully reminds you that the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by consensus by the UN General Assembly on 9 December 1998, recognises the legitimacy of the activities of human rights defenders, their right to freedom of association and to carry out their activities without fear of reprisals. We would particularly draw you attention to Article 5 (b): “For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:(b) To form, join and participate in non-governmental organizations, associations or groups,” and to Article 13: “Everyone has the
right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means...”.

Yours sincerely,

Mary Lawlor
Director


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The Function of Law in the International Community: 75 Years After

What was the world like into which Hersch Lauterpacht’s most important book
The Function of Law in the International Community1 appeared?
Fifteen million Americans were out of work as President Roosevelt took office in 1933. A World Monetary and Economic Conference met in the summer to debate a programme of currency stabilization and adjustment
of inter-governmental debts. Even contemporaries understood that this was a ‘Period of Crisis’.2 They were right. 1933 was the year of Hitler’s accession as Reichskanzler and Europe’s defi nite turn to the path of darkness. By now Hitler had been joined by Mussolini who insisted Italy be treated as a Great Power, especially in terms of its colonial designs in Eastern Africa. Japan’s attack on China had led to the establishment of the puppet regime of Manchukuo. Diplomats kept on talking about non-recognition and economic sanctions but with little eff ect. The Soviet Union turned unexpectedly away from the policy of world revolution. In the following year it would join the League where it would become a staunch opponent of “revision”.

The League of Nations was in a bad way. The Manchurian situation had demonstrated the fragility of the Covenant’s collective security provisions.

The Disarmament Conference had been undermined by Hitler’s accession and Japan’s withdrawal. No country had worked more to support the conference than Britain. Against a general atmosphere of hopelessness Prime Minister Ramsay MacDonald suggested in the spring a new draft convention with defi nite levels of material and provision for conference in case of threatened violations of the peace.3

For more information please link to here: http://bybil.oxfordjournals.org/content/79/1/353.full.pdf+html


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View of US Government on Draft NGO Law in Cambodia

Taken Question

Office of the Spokesman

Washington, DC

Question Taken at the January 7, 2011 Daily Press Briefing

January 12, 2011

 
Question: Has the government of Cambodia started to make laws that place limits on NGOs operating in country? What sort of limits? How is this affecting NGO programs?

Answer: The United States has serious concerns about the law as drafted and strongly opposes the enactment of any law that would constrain the legitimate activities of NGOs. We urge the Royal Government of Cambodia to consult closely with NGOs and other stakeholders on the substance of the draft law, and to reconsider whether such a measure is even necessary. The United States believes that a strong and free civil society is vital to strengthening democratic institutions, enhancing economic and humanitarian well-being, and promoting a sustainable economy. In Cambodia, as in many other countries, NGOs and other civil society organizations make critical contributions in these areas.

More information please link to http://www.state.gov/r/pa/prs/ps/2011/01/154323.htm

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Debate urged on NGO law

Four civil society umbrella organisations have urged the government to make Monday’s consultation the beginning – rather than the end – of public debate on its controversial draft NGO law.
In a statement on Wednesday, the Cooperation Committee for Cambodia, NGO Forum, Medicam and the Cambodian Human Rights Action Committee – representing more than 400 local and international NGOs working in Cambodia – called on the government to incorporate their recommendations into the law.
It also requested the establishment of a joint government-civil society working group to make further revisions.
“Our aim is to have a law that is enabling for us rather than a law that would restrict operations and also our ability to serve the people,” said CCC executive director Lun Borithy.
The groups delivered a statement and summary report of recommendations on Wednesday to the ministries of interior and foreign affairs, he said.
The report includes a host of proposals that amount to considerable changes to the law.
The groups called for registration requirements to be simplified and incorporate registration provisions from the 2007 Civil Code.
It also added that associations and small organisations should be excluded from the scope of the law.
Reporting requirements should be scaled according to an organisation’s size, the report added.
Suspension and dissolution of NGOs should also proceed in accordance with an organisation’s charter, the Civil Code and donor requirements.
“We want those recommendations to be reflected into the current draft and a second draft to be shared with us,” Lun Borithy said.
Phay Siphan, spokesman for the Council of Ministers, said the government has “no position” on the proposals as yet.
The ministries of interior and foreign affairs, which co-authored the draft, will meet to discuss the issue but “don’t have any schedule yet to make a decision on that”, he added.

More information please link to http://www.phnompenhpost.com/index.php/2011011346070/National-news/debate-urged-on-ngo-law.html
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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.		a
Article 4: Definitions	-Define small group associations.		a
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.	a a			a
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%.	a a a	a	a
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.	a
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.	a			a a
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.		a	a
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.	a a a a	a		a a
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.	a	a	a	a
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.	a a		a	a
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”	a a a	a	a	a a
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.	a a		a	a a a a
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	a a a			a
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	a a	a	a a a	a a a
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.	a a a a a		a	a a a a a
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	a		a	a a
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	a			a a
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.				a
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.			a
Article 42:  Rights and Interests of Non-Governmental Organizations	-Clarify tax and other benefits to registered organizations				a
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.	a		a	a
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.	a a a	a a	a a	a a
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			a
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.	a	a	a a	a
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.	a a a		a a a	a
Article 50: Activity Postponement or Memorandum Termination of Foreign Non-Governmental Organizations	-Same concerns and issues in Article 49.	a		a
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.	a		a
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.	a a		a	a
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.	a a a			a
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.	a a a a a		a a	a
	-Incorporate a Glossary of Terms -Develop explanatory notes for every article	a a	a a	a a	a a

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