The Cambodian Government released a revised draft Law on Associations and NGOs on March 24, 2011. The first draft law was made public in December 2010 and a national consultation meeting with NGOs was held on January 10, 2011. Discussions at the national consultation meeting and subsequent meetings between government and NGOs have apparently had little positive impact, however, and the revised draft law has been heavily criticized. Many of the problematic provisions remain from the first draft and new concerns have arisen. There are no plans to hold a second consultation meeting.
Key issues raised by revisions introduced by the second draft law include:
- The draft law outlines a registration process, which would allow for the exercise of unbounded government discretion. The current draft eliminates the few safeguards that protected applicants in the registration process. Article 18 of the first draft was deleted in its entirety, and the law now contains no criteria for the denial of registration. Consequently, the registration determination seems to be left wholly to the discretion of the Ministry of Interior. The problem is compounded by the removal of any requirement to provide a written explanation to the applicant in cases of denial. Moreover, the draft law makes no reference to an opportunity to appeal the denial of registration to an independent adjudicator. The absence of safeguards could have a disproportionate impact on groups that engage in advocacy, support unpopular causes, or are critical of the government.
- The draft law requires a reduced, but still high, minimum membership for associations. 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 second draft law leaves materially unchanged several problematic issues posed by the first draft law, including the following:
- The draft law 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 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 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. 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.” 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 and reporting requirements. For example, 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 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, compliance could be problematic.