Brief analysis of Cambodian draft NGO law
PUBLISHED: DECEMBER 17, 2010
In August 2010, a draft law on NGOs/Associations was reportedly completed by an inter-ministerial committee. The Ministry of Interior issued an open call for support for a national consultation on the draft law. In response, NGO representatives have sought assurances that the draft law be made available to the NGO community to allow for adequate review of the draft law and time for regional consultations at least one month prior to the planned national consultation.
On November 18, 2010, the “NGO National Consultative Workshop on NGO Law” was held in Phnom Penh, in anticipation of the release of the draft NGO Law during December. Approximately 80 representatives from 70 NGOs attended the workshop, which was organized by the Cooperation Committee of Cambodia, NGO Forum, and MEDICAM.
The Draft Law was released on December 15, 2010. A consultation workshop on the draft Law on NGOs/Associations is currently scheduled for January 10, 2011. NGOs, Government ministries, and other stakeholders will be invited.
The law is discussed in greater detail in Global Trends in NGO Law.
Key issues of the law include:
- The draft limits eligible founding members of both associations and NGOs to Cambodian nationals. Consequently, the draft law excludes refugees, stateless persons and others 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 requires a high minimum membership for associations. In order to form an association, 21 Cambodian national founders must be named as members, and at least 7 leaders must handle the registration process. A group of 15-20 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 as the law also prohibits unregistered groups from carrying out activities.
- The draft law outlines an inadequate registration process, likely to impede the associations and NGOs from attaining legal entity status. The draft law includes no clear and limited list of objective grounds for denial of registration. Consequently, government regulators may be able to deny registration on subjective and arbitrary grounds. The lack of such a safeguard could have a disproportionate impact on groups that engage in advocacy or expressive activity that supports unpopular causes or is openly critical of government policy or action. In addition, there are extensive documentation requirements, including “Profiles of the leaders” of the association and domestic NGO, a term which is undefined and could lead to open-ended inquiries by the government into the personal background of the leaders.
- The draft law prohibits any activity conducted by unregistered associations and NGOs. Registration is thus mandatory and unregistered groups are banned. This means that every group of individuals who gather together with a differing level of frequency and perform the broadest variety of imaginable activities, from trekking and football fans, to chess and silk weaving groups, will be acting in violation of law.
- The draft law provides inadequate standards to guide the government’s determination of suspension or termination of an association or NGO. There is no requirement for the governmental authorities to provide notice and an opportunity to rectify problems prior to the suspension or termination, and there is no mention of a right to appeal after suspension or termination. The process of suspension and/or termination is thus open to government manipulation and overreaching.
- The draft law erects barriers to the registration and activity of foreign NGOs. To highlight just two issues: First, 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. Second, the draft law requires mandatory collaboration with the Government of Cambodia, by stating that a foreign NGO “shall collaborate with relevant ministries or institutions of the Royal Government of Cambodia when preparing project plans, implementing, monitoring, aggregating and evaluating the result of the implemented activities.” Thus, there appears to be no room for foreign NGOs to act independently of the Government in addressing public benefit goals or community needs.
- The draft law places constraints on associations and NGOs through notification requirements. First, associations and NGOs are required to “inform in writing the relevant municipal hall or provincial halls …” when implementing activities in a given locale. This requirement, which is separate from and additional to the registration process, could amount to a real burden on program implementation. Second, associations and NGOs that “rotate or terminate or dismiss or remove its staff, members, president or leaders” must inform governmental authorities accordingly. Changes in membership occur frequently, and requiring notification every time a member joined or resigned from a group would be burdensome on organizations. Moreover, the disclosure of membership will chill the freedom of association in certain kinds of groups, such as associations of stigmatized individuals (e.g., HIV/AIDS sufferers) or groups seeking to advance human rights.