Comments on the Third Draft
Law on Associations and Non-Governmental Organizations
of the Kingdom of Cambodia
July 30, 2011
The International Center for Not-for-Profit Law (ICNL) is an international organization that provides technical assistance, research, and education to support the development of appropriate laws and regulatory systems for civil society in countries around the world. ICNL has worked on civil society law reform projects in over one hundred countries; in Asia, ICNL has worked in China, Indonesia, Vietnam, Lao P.D.R., Timor-Leste, Mongolia, and India. ICNL has worked with the United Nations Development Programme, United Nations Volunteers, the Community of Democracies Working Group on Enabling and Protecting Civil Society, the European Union, the Organization for Security and Cooperation in Europe, the United States Agency for International Development, New Zealand AID, the Swedish International Development Agency, human rights groups, private foundations, and scores of in-country colleagues.
These comments address the third draft of the Cambodian Law on Associations and Non-Governmental Organizations, which was released by the Royal Government of Cambodia on July 29, 2011. ICNL has reviewed the draft law solely based on a translation[1] of the third draft, and not based on a review of the broader legal framework within Cambodia, such as the Cambodian Civil Code, labor law or other laws. The analysis is a summary analysis only, and not intended to provide a comprehensive review of the draft law; we invite those interested to review ICNL’s more comprehensive comments on the two earlier drafts.
ICNL believes that sound legislation is the result of a fully participatory and inclusive consultation process, which provides for constructive dialogue between the government and civil society. We urge the Government of Cambodia to engage in further dialogue with civil society and to take into meaningful account the views of organizations to be governed by the new law. ICNL remains concerned by the current draft law and stands ready to provide additional information or technical assistance as necessary and appropriate.
Summary Analysis
The third version of the draft law is little changed from the second version, and most of the fundamental issues of previous drafts remain.
The third draft law does, however, introduce certain limited improvements:
· 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 to 45 days. 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 a 45-day period. Third, the government then must review any modified domestic application within 15 days. Fourth, the draft law provides for the right to appeal for domestic applicants. (Article 17) Fifth, the draft allows registration of domestic entities at the sub-national level (Articles 14-18). As noted below, however, the third draft still lacks clear and objective criteria for the denial of registration.
· The draft amends certain provisions affecting foreign NGOs. Under Article 30 et seq., foreign NGOs seeking to implement “aid projects” in Cambodia must enter into a Memorandum of Understanding with the Cambodian Ministry of Foreign Affairs and International Cooperation (MFA). Article 6 has been revised, however, to state that foreign NGOs operating activities for less than one year need not enter into this Memorandum of Understanding. These organizations are required, however, to notify the MFA about their “aid projects,” duration of activities, and location. In addition, Article 33 has been revised to require the government to provide a written explanation if it decides not to support the aid projects of a foreign NGO, though objective criteria to guide the government’s determination are noticeably absent.
The third draft law fails to address several problematic issues included in earlier versions of the draft law, including the following:
· The draft law fails to ensure that denial of registration is consistent with international law standards. Article 17 states that the Ministry of Interior or sub-national administrative institution “shall examine the documents and legality of the statute of the association or domestic non-governmental organization and shall decide whether to accept or reject the registration …” It is not clear if the “legality” standard is intended to limit government discretion in deciding to accept or reject registration; it is not clearly presented as the sole basis for denial. Even if intended as the sole criterion for denial, however, it is not consistent with international law. It would allow the government to base denial on inconsistency with any provision of law, whether compliant with international human rights law or not. Denial of registration clearly amounts to interference with freedom of association, and consequently can only be justified where denial is “prescribed by law” (meaning that the law is accessible and that concerned persons are able to foresee the consequences of their actions); and “necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.” The “legality” standard fails to limit government decision-making to the confines of this standard. The absence of a clear, limited list of objective grounds for denial could have a disproportionate impact on groups that engage in advocacy, support unpopular causes, or are critical of the government.
- The draft law prohibits any activity conducted by unregistered associations and NGOs. (Article 6) Registration is thus mandatory for associations and unregistered associations are banned. Article 4 defines associations very broadly and seems to embrace any group (made up of Cambodian nationals) who gather together for any purpose, whether for member interests or public interests, provided that purpose is not-for-profit. This would seem to cover not only social service providing groups and human rights groups, but also those focused on trekking or football, chess or silk weaving. Article 6 then states that any unregistered association may not carry out activities in the name of the association. If this is interpreted to require mandatory registration for groups covered under Article 4, then this is a violation of international law. The freedom of association protects both groups with legal entity status and without legal entity status.
· The draft law limits eligible founding members of both associations and NGOs to Cambodian nationals. (Article 4) Consequently, the draft law excludes refugees, stateless persons and others resident in Cambodia from forming associations or domestic NGOs. This nationality requirement constitutes a clear infringement of freedom of association, which should be available to everyone (i.e., all individuals within the state’s territory and subject to its jurisdiction).
· The draft law maintains a high minimum membership requirement for associations. (Article 8) In order to form an association, 11 Cambodian nationals must be named as members, and at least 5 governing members must handle the registration process. While the required minimum number of founding and governing members for associations has been reduced from the first draft, the required minimum threshold will likely impede the formation of small mutual interest groups. A group of 8-10 individuals who wish to associate to pursue a legitimate collective purpose would not be permitted under the draft law to form an association as a legal entity. The interference is exacerbated where the law, as is the case here, prohibits unregistered groups to carry out activities.
· The draft law seems to provide inadequate standards to guide the government’s determination of suspension or termination of an association or NGO. Chapter 8 of the draft law states that involuntary termination may result through a court’s judgment, but there are no grounds for involuntary termination included in Chapter 8 to guide the court’s decision-making. Chapter 9 includes some penalty provisions, but it is unclear (at least in translation) if this chapter provides an exhaustive list of reasons why an association or NGO may be suspended/terminated. It is important that the draft’s provisions governing suspension/termination be clear, objective, and consistent with international law. In addition, Article 52, which addresses liquidation of assets following a judicial ruling, provides no guidance or limitation on how those assets can be transferred.
· The draft law places constraints on associations and NGOs through notification and reporting requirements. Associations and NGOs are required to “provide a written notification to municipal hall or concerned provincial halls …” when implementing activities in a given locale. (Article 43) This requirement, which is separate from and additional to the registration process, could amount to a substantial burden on program implementation. In addition, all associations and NGOs, large and small, domestic and foreign, are subject to the same reporting requirements; for small mutual interest associations in particular, these requirements could prove unduly burdensome.
· The draft law erects barriers to the registration and activity of foreign NGOs. Among other issues, the draft law outlines a heavily bureaucratic, multi-staged registration process, which lacks procedural safeguards, and is therefore subject to delays and subjective, arbitrary and politicized decision-making. Where foreign NGOs are denied the ability to operate in Cambodia, there is no right to appeal. (While the current draft provides relief to those foreign NGOs seeking to operate for less than one year, the burdensome registration process applies to all other foreign NGOs.) Moreover, Article 39 sets a cap on administrative expenses (defined to include staff salaries, office equipment and other expenditures for office functioning), limiting them to no more than 25% of the total budget. In addition, the draft law requires mandatory collaboration with the Government of Cambodia, by stating that a foreign NGO “shall collaborate with relevant partner ministries / institutions of the Royal Government of Cambodia when developing projects, monitoring, and evaluating the implemented activities or results.” (Article 36) Thus, there appears to be no room for foreign NGOs to act independently of the Government in addressing public benefit goals or community needs.
If you want to see the original comment for ICNL please link here
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[1] ICNL has relied on the unofficial translation provided by the Office of the High Commission for Human Rights (OHCHR) on July 29. We extend our appreciation to OHCHR for the translation.
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