Friday, September 9, 2011

Introduction of Law Journal of Cambodia Team (LJCT)


Law Journal of Cambodia Team (LJCT) is a non-political and independent team who volunteer working for disseminating law in Cambodia. All our comment or idea of LJCT cannot be claimed in front of court and other purpose. LJCT just provide ways for people to understand the context of law and other issues. LJCT wants people to understand the law and live in peaceful means. 

In order to be adequate the information, provide a credit for writers and follow the intellectual property law of Cambodia, LJCT would like to introduce our members and activities below: 

  1. Initiative Member

LJCT was initiated by four people who graduated from Master Degree of Law, in Phnom Penh and abroad.

Most specializations of those members are land law, Civil Matter (Civil Code and Code of Civil Procedure), Criminal Matters (Criminal Code and Code of Criminal Procedure), Financial and Banking. Most of LJCT are working as lecturer at universities, NGOs, Banking and Financial institutions and private sector.   

  1. Membership

LJCT welcome for people who want to be member of LJCT. If you want to be members, please send your request to cambodianlawjournal@gmail.com. LJCT will response and need you to complete some information.

  1. Activities

LJCT will issue its analysis relating to legal aspects and also update newly information regarding situation of human rights, and progress of investment in Cambodia.

Everyday, LJCT at least one article is post its blogspot. Every weekend, LJCT will wrap up the event for a week.

Harvard Journal of Law & Public Policy, Volume 34, Issue 1 (Pages 1 - 420)         The Georgetown Law Journal (Volume 4)       Fordham Journal of Corporate & Financial Law

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Wednesday, September 7, 2011

Labour draft law revamped

Today Phnom Penh Post issued its article relating labour draft law. In the below is an original document from Phnom Penh Post. Please link the original website: http://www.phnompenhpost.com/index.php/2011090751499/National-news/labour-draft-law-revamped.html


The government has dropped controversial criminal penalties targeting unionists in its latest draft of the union law, Commerce Minister Cham Prasidh said yesterday.

Addressing a meeting of representatives of international apparel brands, including Nike, Adidas and PUMA, unions, government officials and the International Labour Organisation, Cham Prasidh said the government had heeded criticisms of the law.

“Regarding concerns by relevant parties about penalty chapters in the draft, the government decided to remove the criminal provisions and lessen the financial penalties as well,” he said.
The previous draft was heavily criticised by unions and civil society groups for allowing union representatives to be sent to prison for up to three months and fined up to 10 million riel if they are found to have forced workers to join unions.

Cham Prasidh said the latest draft, the fourth, served the interests of all parties and did not privilege any individual or group. It would be submitted to the government by the end of the year, he said.

The minister praised the Cambodian garment sector’s resilience, noting that it had grown by 25 percent since the global economic crisis while successfully protecting the rights of workers. However, he also urged investors to keep in mind that Cambodia was a relatively young democracy with unique values.

“In the US you can ridicule your president. You can have a cartoon depicting president Bush in a temple or whatever, even as a gay or hippie. In Cambodia, if you do [that to] Prime Minister Hun Sen you are going to be in jail,” he said.

Sat Sakmoth, under secretariat of state at the labour ministry confirmed that the draft law had been sent to the Council of Ministers.

“Many articles were dropped, which included articles related to criminal sanctions,” he said.

Dave Welsh, country director for the American Centre for International Labour Solidarity, described the criminal penalties in the previous draft union law as “outrageous”.

“Trade union laws promote free collective bargaining and independent trade unionism. So far that has not been the case here, but the government’s been responsive to changes, so let’s wait and see,” he said.

Rong Chhun, president of the Cambodia Confederation of Unions, said the amendments made to the draft law did not sufficiently alleviate restrictions on unions. “What the Ministry of Labour did is still unacceptable to unions,” he said.

Welsh said that appeals Cham Prasidh had made to the US government to drop tariffs on Cambodian garments as they had done to 95 percent of tariff lines in Africa were predicated on Cambodia adopting a proper trade union law.

“Well the quid pro quo for that is for free trade access. There’s a labour provision for that. You have to promote proper free collective bargaining.”

The US has pledged to drop the tariffs but has thus far not scrapped them, costing the Cambodian garment industry some $US400 million per year, Cham Prasidh said.

Charmaine Nuguid-Anden, a representative of PUMA, said concerns about practices in the production of garments in developing countries were not limited to laws and minimum wage. “The labour issue is technically only one component, the price of labour input into a garment or a shoe for that matter is very small ... there are a lot of other issues here when it comes to investing here, there’s a lot more investment that needs to come in, material, education etc.,” she said. 


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Challenges to the effective operation of local NGOs in Cambodia



Every year, an amount of over 150 billon dollar of official aid flows from western to developing countries (De Haan, 2009, 1). This money is spent and allocated by four main groups of institutions which are active in the international development industry. Most of the money is provided via bilateral channels, which is direct support from one government to another. The coordination of this process is mostly in hands of embassies of the donor country.  The second group contains the multilateral organisations which include the United Nations agencies and the World Bank. The third group, which is the newest group, are private organisations. This group is characterised by organisations which are set up by some of the wealthiest people and companies in the world, such as Bill Gates,  Warren Buffet, the Ford Foundation and Bertelsmann Foundation. The last group, which is the group this study will concentrate on, are the Non-Governmental Organisations (NGOs). This group has grown rapidly over the last decades and plays an important role in the international aid industry (Reijngoud, 2009, 116; De Haan, 2009, 21). Development focused NGOs form a significant part of the development industry as about 15 percent of the total amount of international aid is allocated via NGOs (De Haan, 2009, 49).  NGOs operating on the international level  have a close relation with NGOs  working on the local level, as these international organisations provide assistance and donor money to local NGOs. This study focuses on the relation between international NGOs and local NGOs, and local Cambodian NGOs in specific.

Before looking at the relation between these two types of Non-Governmental Organisations, it is important to take a closer look at the history of the international development industry first. In the international aid industry, different kinds of doctrines have played a central  role. In the last fifty years of development aid, five periods with different philosophies can be distinguished (Reijngoud, 2009, 82-93; De Haan, 2009, 69-83).  The  1950s  and the  1960s were characterised by optimism. People were convinced that specific projects like building schools and digging water wells were the key to success in helping third world countries. The optimism derived partly from positive experiences with the Marshall plan in Europe, a growing world economy, and because of the rapid decolonisation especially in Africa.  The 1970s were characterised by  redistribution. People came to the conclusion that the last twenty years of development aid had not produced the desired results, as people in the Third World were still poor and the gap between rich and poor continued to get larger and larger.

Marxist ideas became the dominant tone and a more explicit focus came on poverty and redistribution(both within developing countries and between developing countries and western countries). In order to achieve redistribution, food aid became less important and the aid industry started to pay more attention to agriculture,  rural development and basic needs. In comparison to the 1950s and 1960s, developing countries became more aware of the interaction between rural and urban, and traditional and modern sectors.

During the 1980s, a more „no nonsense‟ philosophy became central as during the period of government of Reagan and Thatcher liberal economical reforms were the key values. Focus came on structural economic problems in developing countries, such as weak economies and disastrous state finances, instead of incoherent development projects. This new focus  was exemplified by the structural adjustment programmes‟ of the World Bank and the IMF, and meant that aid was provided along  with a large number of conditions for developing  countries concerning adjustments of their economy  aiming to scale back the state intervention in the markets.  In practice this implied for developing  countries making drastic cutbacks on government expenses like salaries of government officials, teachers and doctors, but also putting a hold on building roads and (if existing) social welfare systems,  a trend which  matched perfectly  with the  neoliberal philosophy of Thatcher and Reagan (Reijngoud, 2009, 82-93; De Haan, 2009, 69-83).

During the beginning of the 1990s, international development came into a crisis. People realised that after almost fifty years, still many developing countries were poor or even had become poorer, and the developing countries that were doing better at that time did this on their own and not with the help of western countries. In addition, in Africa conflicts started to erupt one after another.  However, during the mid-1990s a turnaround came which is, according to the literature, difficult to explain. One of the reasons mentioned is the fact of the reviving world economy, and even the approach of the year 2000 is mentioned as a turning point: a symbol for a new start, also in the aid industry. Since the mid-1990s, the  international development discourse has been dominated by the  philosophy or doctrine called ownership‟.  Ownership implies that developing  countries are the so-called owners of their own problems and they have to  come up with solutions themselves. The idea of ownership is to a large extent about who decides what is done. Donors should lay an emphasis on supporting developing countries and local organisations, instead of carrying out projects and activities (Reijngoud, 2009, 82-93; De Haan, 2009, 69-83). The idea of ownership was not just a grand philosophy for bilateral aid, also international NGOs started to work  according to this idea when working with their partners and local NGOs in the South.  Local  partners needed to have more ownership over the work they were doing, and international donors should play a supporting role.

Although the international development  discourse  is  at this moment  dominated by the idea of ownership, literature  suggests that  local NGOs  in developing countries  still seem to have a lack of ownership concerning their activities and programmes. Whether and when one can speak of lack of ownership is difficult to determine.  Perhaps full ownership is never possible as there is always a relation based on dependency when  one organisation provides donor assistance to another. Also possible is that there may be different levels of ownership. Looking at the case of Cambodia, a country on which this  study will focus, it is said that donors  still have a big influence  on what activities are carried out by local  Cambodian  NGOs. Besides, the literature distinguishes other issues which may challenge the effectiveness of local Cambodian NGOs, including NGO-isation, which means that local NGOs become organised as professional NGOs with western organisational structures and change their organisation towards donor standards in order to be the most likely candidate to receive donor funds. As a consequence of this NGO-isation, and the upward rather than downward orientation of this organisation, some local NGOs become removed from their local constituency. Also a lack of strategy or strategic thinking which goes beyond short term level seems to challenge the effective operation of local NGOs. It is said that some local NGOs do not seem to consider how and in what way their projects and activities can contribute to reach the goal of the NGO as is mentioned in their mission or vision. Lastly, there seems to be a lack of knowledge or a difference in knowledge between local and international NGOs (for instance lack of knowledge of worldwide issues in the aid industry, lack of practical knowledge about writing reports, the English language, or analytical skills) which challenges the effective operation of local Cambodian NGOs (Derksen & Verhallen, 2008; Hughes 2003; Hughes, n.d.; Hughes & Conway, 2003; Henke, 2009; Scheper, 2005; Verkoren, 2009).  The question is, however, whether the local NGOs in Cambodia endorse these problems mentioned in the literature.

Therefore, this study will try to find out whether local NGOs in Cambodia endorse problems as lack of
ownership, NGO-isation, lack of strategy and lack of knowledge, as is mentioned in the literature. In Part I of the present study, the following research question will be answered:
„Do local NGOs in Cambodia endorse the problems of lack of ownership, NGO-isation, lack of strategy and lack of knowledge?‟

A new paradigm  called Civic Driven Change might serve as a handle to local Cambodian NGOs in order to  overcome some of the mentioned problems which may challenge the effective operation of local NGOs.  This new paradigm refers to and promotes a process of changes in society which is directly initiated, lead and owned by people themselves. It may serve as a new way to counter the in the literature mentioned problems of lack of ownership, NGO-isation, lack of strategy and lack of knowledge. The Civic Driven Change paradigm is fairly new. At this moment, it is more a theoretical paradigm which has not been brought generally into practise, and not much research has been carried out into this new paradigm. Therefore, it is interesting to find out what ideas practitioners working in the Cambodian NGO sector, both Cambodians and internationals, have about this new paradigm, and whether they believe that this paradigm might offer possibilities to overcome some of the earlier mentioned problems. Therefore, the following research question will  also be  answered in Part I the present study:

„Does the Civic Driven Change concept offer inspiration or possibilities to people working in the Cambodian NGO sector for overcoming some of the problems like lack of ownership, NGO-isation, lack of strategy and lack of knowledge?‟

In reaction to the  mentioned issues  which  are considered to  challenge the effectiveness of local Cambodian NGOs, various initiatives have taken place which may help tackle the problems of lack of ownership, NGO-isation, lack of strategy and lack of knowledge.

ICCO, a Dutch NGO, has implemented the  „Programmatic Approach‟. This initiative prioritises ownership over a narrowly focused top-down programme conceptualisation (Henke, 2007). This new approach could thus form an answer to problems like lack of ownership and NGO-isation, as ICCO strives to change the current top-down relation between international and local NGOs by introducing a complete new way of working: the Programmatic Approach.

Another initiative is the NGO Forum in Cambodia. This forum is an example of an initiative where local NGOs share information and debate on issues that are affecting Cambodia‟s development, and jointly advocate NGOs‟ interests at government level and at other authorities. The NGO Forum might counter problems like lack of knowledge and lack of strategy as the NGOs involved in the forum share ideas, talk about current issues, and create joint strategies. This sharing can increase the knowledge of the involved NGOs and can make them aware of the importance of a well-considered strategy.

In Part II of this study, two evaluative case studies into the Programmatic Approach of ICCO and the NGO Forum will be carried out.  In these case studies,  a closer look  will be taken  at the goal, the strengths, and weaknesses of the initiatives. The two case studies will try to find out whether these initiatives help tackling the mentioned problems of lack of ownership, NGO-isation, lack of strategy and lack of knowledge, which are considered to challenge the effectiveness of local Cambodian NGOs.

Please link the original source of this document: http://geography2.ruhosting.nl/masterthesis/scripties/SandeAnnevande.pdf


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Tuesday, September 6, 2011

Suit for present performance and suit for future performance in Code of Civil Procedure in Cambodia


There are two types of suit for performance: suit for present performance and suit for future performance.

The former refers to a suit where the plaintiff claims his right to claim performance in which the due date has already arrived, and the latter refers to a suit where the plaintiff claims his right to claim performance in which the due date has not arrived yet. In cases where the plaintiff files a suit claiming his right to claim performance which is not still due, and such performance becomes due while the suit is pending at court, it means that the plaintiff has filed a suit to demand present performance. Therefore, considering this kind of suit, the suit for present performance includes those in which the right to claim performance claimed by the plaintiff becomes due by the time of conclusion of the oral argument in trial.

The suit for future performance, as explained above, seeks a judgment ordering performance by the defendant, by claiming a right to claim performance in which the due date has not arrived yet. Therefore, this kind of suit may be filed only where it is necessary to make a claim in advance (Article 76). Cases where it is necessary to make a claim in advance refer to cases where it is admitted that non-performance at the due date shall cause irrevocable harm to the obligee. For example;

- it is anticipated that there will be no payment on the due date with regard to an obligation with a fixed term (for example, as the defendant has not paid the loan principal and interests already due, he may not pay interests accruing in the future on their due dates);

- Non-payment of alimony, etc.
As explained above, a special benefit must be expected in a suit for future performance.


You link the book that relating this topic: Law in the Pursuit of Development: Principles into Practice? (Law, Development and Globalization)Law in the Pursuit of Development: Principles into Practice? (Law, Development and Globalization)

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Monday, September 5, 2011

Demand Procedure in Code of Civil Procedure of Cambodia

Chapter One  Meaning of Demand Procedures
Demand procedures are procedures to grant an obligee a title of execution (Article 350) that is necessary to conduct a compulsory execution with regard to a claim for the payment of money and functionally to substitute for a suit for payment.  Under the civil procedure system, an obligee cannot exercise a claim for payment via execution until it files a suit and obtains a prevailing judgment.  However, it requires a considerable amount of money and time if an obligee files a suit and advocates at the court every time, even for a minor claim that the other party will not contest.  Thus, demand procedures have been established in order to provide for a means to allow an obligee to obtain a title of execution by way of a simple, prompt and inexpensive method without the usual litigation procedures when an obligor does not intend to contest the existence of the claim, but intentionally fails to perform the payment obligation.  For this reason, an obligor shall be given an opportunity, upon a motion of objection, to pursue court proceedings in the usual way if he or she intends to do so.  Demand procedures are a type of special proceedings for which, however, an examination of both parties is not conducted, and where the party filing the motion is called an “obligee” and the other party is called an “obligor.” California Code of Civil Procedure 2005 downloadable Software


Chapter Two  Motion Seeking the Issuance of a Demand Ruling

1.         Court having jurisdiction over a motion for a demand ruling
A motion seeking the issuance of a demand ruling shall be made in the court of first instance having jurisdiction over the corresponding locations provided for below, (1) in cases where the other party is a natural person; the person’s domicile, or where there is no domicile in Cambodia or such domicile is unknown, the location of the person’s residence, (2) in cases where the other party is a domestic juridical person; the juridical person’s main office or place of business, or where there is no office or place of business, the location of the domicile of the entity’s representative or other principal person in charge of the operations of the entity, or (3) in cases where the other party is a foreign juridical person; the juridical person’s main office or place of business within Cambodia, or where there is no office or place of business within Cambodia, the location of the domicile within Cambodia of the entity’s representative or other principal person in charge of the operations of the entity (Article 320, paragraph 1 (c)).  A motion seeking the issuance of a demand ruling with a claim against a person or entity having an office or place of business at a certain location and pertaining to business transacted therein may be filed in the court of first instance having jurisdiction over such a location.  In addition, a motion seeking the issuance of a demand ruling with a claim for the payment of money based on a bill or check, or a claim ancillary thereto may be made in the court of first instance having jurisdiction over the location of the payment of the bill or check (Article 320, paragraph 2).
2.         Requirements for a demand ruling
(1)  A claim should be for the payment of money
A motion seeking the issuance of a demand ruling may be filed only for a claim for the payment of money (main body of Article 319).  This is because, as for this type of claim, if an obligee conducts a compulsory execution by mistake, the resulting damage can be easily restored by monetary compensation.  While a claim is required to be valid, a claim seeking the performance of an obligation in exchange for counter-performance is also allowed.
(2)  A demand should be served in Cambodia in a manner other than serving the notice by publication
A motion for a demand ruling can be filed only if the demand can be served in Cambodia in a manner other than serving by publication (proviso of Article 319). This is in order to give the obligor an opportunity to make a motion for an objection.
(3)  Mutatis mutandis application of the provisions pertaining to a suit
In general, provisions pertaining to a “suit" shall apply mutatis mutandis to motions seeking issuance of a demand ruling except where such provisions are inconsistent with the nature of such a ruling (Article 321).  Therefore, a motion shall include the names and addresses of the parties as well as the ruling sought and the facts necessary to specify the claim (mutatis mutandis application of Article 75, paragraph 2).

3.         Proceedings for a motion and a trial
(1)  Dismissal of a motion for a demand ruling
A demand ruling shall be issued without examination of the obligor (Article 323, paragraph 1).  Where a motion for a demand ruling is not according to the law since it does not satisfy the requirements for a demand ruling (Article 319) or relates to the wrong jurisdiction (Article 320), or it is clear from the substance of the motion that there are no grounds for the claim, the court shall dismiss the motion via a ruling (First sentence of Article 322).  Where a demand ruling cannot be issued as to part of a claim, the above-mentioned provision shall apply to such a part (Second sentence of Article 322).  A motion for an appeal may not be filed against a ruling for a dismissal.  This is because obligees will not be definitely deprived of the means of contesting their rights even when receiving a ruling for a dismissal since they are able to file a suit to seek the issuance of a demand ruling.
(2)  Acceptance of a motion for a demand ruling
When the court determines that the motion is acceptable, the court shall issue a demand ruling.  A demand ruling shall include the names and addresses of the parties, the contents of the main text of the ruling sought and the facts necessary to specify the claim, and an order for the payment of a certain sum of money (Article 324, paragraph 1) as well as a statement to the effect that if no objection to this is brought within two (2) weeks from the date that the obligor was served with the order, the court shall on its own authority make a declaration of provisional execution (Article 324, paragraph 2).  The court shall notify the obligee of the demand ruling and serve the demand ruling on the obligor (Article 325, paragraph 1).  The demand ruling shall take effect when it is served on the obligor (Article 325, paragraph 2 and in cases where a demand ruling cannot be served, see Article 325, paragraphs 3 and 4).

Chapter Three  Objection to a Demand Ruling

1.   Objection to a demand ruling made before a declaration of provisional execution.
(1)  Meaning of an objection to a demand ruling made before the declaration of provisional execution
A demand ruling shall be issued without an examination of the obligor (Article 323, paragraph 1) or a review as to whether a claim exists or not.  Hence, the Code of Civil Procedure stipulates that the obligor may make an objection to a demand ruling before the court that issued it (Article 323, paragraph 2) and that if the objection to a demand ruling is made, a suit shall be deemed filed before the court with regard to a claim to which an objection to the issuance of a demand ruling has been filed (Article 327) in order to ensure that the obligor has an opportunity to contest it.
(2)   In cases where no objection to a demand ruling is made
Where an obligor fails to make an objection to a demand ruling within two (2) weeks of the date of being served such a ruling, the court shall, on its own authority, include in the demand ruling an additional statement regarding the amount of costs incurred in connection with the demand procedure and shall make a declaration of provisional execution thereof (Article 328, paragraph 1).  Furthermore, even if an objection is made but the court issues a ruling dismissing such an objection and it becomes final and binding, the court shall follow the same procedures mentioned above (Article 328, paragraph 1).  The declaration of provisional execution shall be served on both parties (Article 328, paragraph 2).  The ruling demanding payment accompanied by a declaration of provisional execution shall be deemed a title of execution (Article 350, paragraph 2 (d)) based on which, the obligee may conduct an execution.
(3)  In cases where an objection to a demand ruling is made
On the other hand, where a valid objection to the issuance of a demand ruling is brought prior to a declaration of provisional execution, the demand ruling shall lose its legal effect to the extent of the objection raised to it (Article 327, paragraph 1) and no declaration of provisional execution can be made any more.  Where a valid objection is made, a suit shall be deemed filed before the court with regard to a claim as to which the objection to the issuance of a demand ruling has been filed (First sentence of Article 327, paragraph 2).   Thus, the existence of the claim made by an obligee will be reviewed in the course of the court proceedings and a judgment will be made.  In this case, costs incurred in connection with the demand procedures shall be deemed part of the costs of the litigation initiated thereby (Second sentence of Article 327, paragraph 2).

2.    Objection to the issuance of a demand ruling brought after a declaration of provisional execution
(1)  Meaning of an objection to a demand ruling brought after the declaration of provisional execution
If an obligor fails to raise an objection to a demand ruling within two (2) weeks of the date of being served with the ruling, or where the court dismisses an objection to the issuance of a demand via a ruling due to unlawfulness, the court shall make a declaration of provisional execution.  In this case, the obligor may again file a motion for an objection within two (2) weeks of the date of being served with the declaration (Article 329, paragraph 1).  This two-week period may not be extended (Article 329, paragraph 2).  If no objection is made with regard to a demand ruling during this period, the procedure is completed and the demand ruling shall have the effect of a final and binding judgment (Article 333).
(2)  Unlawful objection to a demand ruling
Where the court determines that an objection to the issuance of a demand ruling that was brought after a declaration of provisional execution is unlawful (e.g. where the period for filing an objection has already expired, etc.), the court shall dismiss the objection via a ruling (Article 330, paragraph 1).  An obligor may file a Chomtoah appeal against such a ruling (Article 330, paragraph 2), however, when a ruling to dismiss becomes final and binding, which means that the obligor has not filed a motion of objection nor a Chomtoah appeal, the demand ruling shall have the effect of a final and binding judgment (Article 333).
(3)  Effect of a lawful objection to a ruling
Where a valid objection to the issuance of a demand ruling is brought after a declaration of provisional execution is made, a suit shall be deemed filed before the court that issued the demand ruling with regard to the claim for which the objection to the issuance of a demand ruling has been filed (First sentence of Article 331), and the demand procedure is transferred to the usual court proceedings.  In this case, costs incurred in relation to the demand procedure shall be deemed part of the costs of the litigation initiated thereby (Second sentence of Article 331).
A motion for an objection to a demand ruling raised after the declaration of a provisional execution does not have the effect of invalidating the demand ruling with a declaration of provisional execution that constitutes a title of execution, but rather it has a similar function to an appeal to demand the reversal of the ruling.  Therefore, where a judgment rendered in litigation to which the demand procedures are transferred due to the fact that the filing of the motion for objection conforms to the original demand ruling (i.e. where the court approves the original claim made by an obligee), the court shall uphold the demand ruling that included the declaration of provisional execution (First sentence of Article 332, paragraph 1), provided, however, that this shall not apply where the demand procedure was conducted in violation of the law (Second sentence of Article 332, paragraph 1).  On the other hand, if it is deemed that a claim has no valid grounds, the court shall render a judgment to nullify any demand ruling that includes a declaration of provisional execution (Article 332, paragraph 2).  







Commentary on the Italian Code of Civil ProcedureCommentary on the Italian Code of Civil Procedure











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Draft of NGOs law under discussing at Legal Team at Council of Minister today (Sept 5, 2011) of Cambodia

Please be informed that Draft of NGOs law is under the hand of council of minister team which were set by Prime Minister to review this draft today Sept 5, 2011. After the team review it, the draft law will be returned to Ministry of Interior (MoI) and after that MoI review it and send to Council of Jurist "LICADHO report".

It believed that this draft law will be soon at plenary session of council of minister. If the plenary session passed this law, it would be sent to National Assembly. It worried that this draft law as very restrictive the freedom of associations. The thousand of organizations will be faced this law. And it is also re-registered again when this law enacted.

This law has a double standard of authority to register as legal entity. In the law of implementation of civil code in article 18 provided authority to ministry of justice to register but in the draft of NGOs law provide authorization to Ministry of Interior.

Another the big challenge is regarding article 13 of draft NGOs law in which is needed all the group of people who want to create NGOs or legal entity shall register. If they failed to register, they cannot do any activities. Therefore, in case, such NGOs don't register and do activities, the local authorities will treat that they do something is illegal.

All NGOs try their best to stuck this law not to be passed. Some organizations do international campaign against this law and asked them to postpone or cancel the AID if the government still want to have such restrictive law. Now Cambodia is applying to be non permanent member of security council at UN. And some NGOs might link this activity to persuade all members of UN to not vote for Cambodia to seat. However Cambodia's application was endorsed or supported by China so everything the Royal Government of Cambodia will get the seat as non permanent member in Security Council of UN.

 Five to Rule Them All: The UN Security Council and the Making of the Modern World

  NGOs in International Law: Efficiency in Flexibility?   

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Sunday, September 4, 2011

Why are international indices often flatly rejected in Cambodia?


The World Justice Project published its Rule Of Law Index in early June 2011 – placing Cambodia towards the end in this 66 countries observations on governments and the rule of law. One comment says aboout the Asia-Pacific region:
“New Zealand got the highest marks in Asia, followed by Japan. The lowest scores were in Cambodia and Pakistan, which ranked at the bottom on nearly every measure.”
Cambodia was ranked last for abence of effective regulatory enforcement and absence of easy access to civil justice, for corruption, and because of weak property rights.
And a report about the Global Competitiveness Index says:
For the fourth year running, Cambodia has remained virtually static in a global ranking of competitiveness… Of 139 countries ranked based on factors ranging from human resources to legal institutions to technology, Cambodia ranked 109… The report also surveys local business executives to evaluate challenges to conducting business. Corruption ranks highest in a listing of “most problematic factors for doing business,” with 21.5 percent of respondents selecting it as number one. Inefficient bureaucracy and an insufficiently trained workforce are fingered as the second and third largest obstacles. Chheng Kimlong, an economist at the University of Cambodia, said yesterday that the government needed to focus on cutting red tape, creating more incentives for business registration and cracking down on under-the-table payments. [Cambodia Daily – 17.6.2011]
Whenever such global indexes are published – like the Corruption Perceptions Index, or the World Development Indicators – there are almost regularly negative reactions from Cambodian authorities. So also this time.
An officer of the Anti-Corruption Unit refuted the Cambodia related Rule Of Law Index because there was no reference to the work of this institution: “This group has no idea what we are doing. Some people just see the rich and assume that the rich are corrupt.”
A secretary of state of the Ministry of Justice called the Cambodia ranking “baseless.” – “They just heard certain information and wrote the report” without talking to a minister or related officials. [Cambodia Daily – 15.6.2011]
Such indices are compiled on the basis of specific sets of data, and the methods how they are applied and compiled, for all countries covered, are available to the interested public. I do not remember to have ever seen an analytical critical discussion related to the data sets used, when Cambodian institutions or their representatives deliver their negative reactions.
Such indices are prepared according to data where the inputs from many different countries are compared – they do not single out individual countries in their analyzes. And many governments and business associations are eager to study the results in order to find opportunities to improve their own performance.
How can such usually flat rejections of international indices be maintained in view of what else is reported in the media? Just to cite some recent examples:
  • “4 Yeaars On, Land Case Again Without a Judge” – “More than four years after a complaint was filed, Ratanakiri Provincial Court has yet to complete an investigation of a 450-hectare land dispute between 50 ethnic Jarai families in O’Yadaw district and Keat Kolny, the sister of Finance Minister Keat Chhon.” [Cambodia Daily – 9.6.2011]
  • “Social Affairs Ministry Reveals Graft” – on 5 July 2011 the Finance Minister Keat Chon wrote to the Social Affairs Minister, “I would like to inform Your Excellency that by the cooperation among officials at 24 provincial departments of social affairs, veteran and youth rehabilitatin, the Anti-Corruption Unit has uncovered suspicions… and irregularities totalling about US$5.48 million. Some of the funds had been spent illegally on non-existing beheficiaries, and others funds were knowingly overstated. [Source: Cambodia Daily – 15.7.2011] – “Yi Yaun, secretary of state at the Ministry of Social Affairs, declined to comment and referred questions to ministry spokesperson Lim El Djurando who could not be reached.” [Cambodia Daily – 16/17.7.2011] – Officials responsible for embezzling more than $5 million will likely not face immediate prosecution but will be required to undergo ‘educational measures,’ Finance Minister Keat Chhon said yesterday… ‘This is the forgiveness of the government under the government under the leadership of Prime Minister Hun Sen,’ said Mr. Cheam Yeap. [Source: Cambodia Daily – 19.7.2011]
  • “Alleged Gunshots Over Late Food Order Result in No Charges” – “A group including the son of a high-ranking official was releassed wihout charge by military police on Monday night after one of them allegedly fired a handgun into the air because his food order took too long… Three tuk-tuk drivers at the scene… said the man got into a black Range Rover and drove away… A Phnom Penh military police officer [stopped] the vehicle in front of Olympic Stadion at about 11 p.m… After members of the group made some phone calls, he added, a military police comander called him to order their immediate release… Phnom Penh deputy military police chief Pong Savrith said he had heard about the shooting… National Police Chief General Sao Sokha and Phnom Penh Police Chief Touch Naruth said they were not aware of the incident.” [Cambodia Daily – 13.7.2011]
  • “Government Withholds IMF Report” – “Despite recommendations by the Internatinal Monetary Fund to do so, the government has not publicly released a comprehensive analysis of the country’s financial system completed last year by the IMF and the World Bank… [The analysis] also highlights risks and vulnerabilities in financial markets… Hang Chuon Naron, secretary of state at the Ministy of Finance, said he was unsure who would be responsible for the release of the report, but he denied it was his ministry… Bankers said that Cambodia’s financial sector would benefit from the report’s release. ‘In the interest of transparency, it would be good for it to come out… In other countries, it has been a very useful document that presents an understanding of where the financial sector is at.’ [Cambodia Daily – 19.7.2011]
Is it a surprise that the Rule Of Law Index places Cambodia fairly low? And is it really a surprise – given the reported realities – that a secretary of state of the Ministry of Justice called the Cambodia ranking “baseless”? Based on what criteria, and on whose interests?
Please link below to see the original source: http://www.thinking21.org/?p=300
Practicing Under the US Anti Corruption Laws        Anti-Corruption Law and Compliance: Guide to the FCPA and BeyondAsia 

A Comparative Study of mechanisms of anti-corruption laws of China People s Public Security University Press

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