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Logo of Phnom Penh Post newspaper Phnom Penh Post - Expat returnees pose legal questions for West

Expat returnees pose legal questions for West

S ome come back for the best of reasons, some are "less than altruistic." Expat

returnees are posing hard legal questions for their adopted homelands. Nate

Thayer reports.

WHEN Sok Chenda Sophea returned to Cambodia in 1992

after nearly two decades in exile in France, he came with a vision of doing his

part to help rebuild his shattered homeland. The 38 year old Chenda, now an

under secretary of state for the Ministry of Tourism , cuts a sharp figure with

his European tailored suits, fluent French and English, and university and

professional background in advertising and tourism promotion. His government

salary is the equivalent of US$27 a month.

Likewise, Samnang Siv, 39,

quit her US$90,000 a year job working for a biotechnology firm in Massachusetts

in the US in April 1994 and returned to Cambodia. Leaving behind her husband and

20 year old son, she now serves as an advisor to the Minister of Tourism, and,

with fluency in three languages and her dynamic personality, has been

instrumental in assisting foreign companies to come to Cambodia and invest.

"I have been given 40 liters of petrol for my car," she says, and no

salary yet. "I just want to contribute my knowledge, my skills, and help my

government. I think they need people like me."

In a country whose most

decimated commodity after decades of warfare is it's human resources, Sok Chenda

and Samnang Siv are exactly what Cambodia needs to get back on it's feet. And

there are hundreds of Khmers like them who have brought back their technical

expertise, leaving behind "the good life" for reasons that are explained in

terms little more complicated than a patriotic commitment to their native lands.

"I just want to help my country and people," says Chenda.

But along with

the good has also come the bad. Cambodia is choc-a-bloc with scores of corrupt

and rapacious ethnic Khmers, many holding foreign citizenship and passports, who

have returned since the fall of communism and are now officials in the new

government. According to many businessmen and other Cambodian officials, the

ranks of government are filled with foreign citizens lining their pockets with

kickbacks.

"Oh boy," says Chhang Song shaking his head, "We were puritans

compared to these guys."

Chhang, a former Minister of Information in the

notoriously corrupt, US-backed Lon Nol regime that fell to Pol Pot's Khmer Rouge

in 1975, is an American citizen from Washington, DC who recently returned to

serve as an advisor to the current government.

The recent phenomena of

foreign citizens returning to participate in the rebuilding of their countries

since the collapse of communism and the cold war has raised a new set of legal

and other complexities for the mostly western governments that the returnees

hail from. While Cambodia stands out as a particularly stark example, it is also

increasingly common in Eastern Europe, the former Soviet Union and the Baltic

states.

A recent Prime Minister of Bosnia Herzogovina is an American.

And in 1992, when an American citizen was chosen as defence minister of the

newly independent Lithuania, the U.S. government forced him to make a choice

between his passport or the job. A recent Foreign Minister in Armenia was also

an American. A Wisconsin politician, Rudy Perpich, was considering accepting the

post of Prime Minister of Croatia in 1991. But when U.S. authorities informed

him they could not guarantee that he could maintain his American citizenship, he

declined the position, according to U.S. diplomats.

But nothing compares

to Cambodia. Senior officials who are citizens of foreign countries include the

Queen, the First Prime Minister, the Ministers of Foreign Affairs, Interior,

Education, Agriculture, Rural Development, Women's Affairs, Tourism,

Information, and even Culture.

As well, the head of the powerful

Cambodian Development Council, at least 30 members of Parliament, numerous

provincial governors, secretaries and under secretaries of state, civil

servants, ambassadors, and military generals hold foreign

citizenships.

The bulk of these officials hold French, American, or

Australian passports, but Canada, New Zealand, Japan, and Switzerland are also

represented. Most fled on the heels of the communist victory in 1975 or through

refugee camps on the Thai border set up after the Vietnamese invasion of

Cambodia in late 1978.

"On the one hand we want to encourage them to come

back to help reconstruct their country," says a US diplomat, "This is a good

thing. But there are complications."

While American law states that a US

citizen cannot take an oath of allegiance to a foreign government, the law is

rarely enforced. "The policy has shifted over the years since the end of the

cold war," said a US government lawyer familiar with the issue. "We now approach

these on a case by case basis."

One reason, say diplomats from several

governments, is that many of the senior officials in the newly emerging

democracies would not return to help reconstruct their homeland if forced to

give up their foreign citizenship. " The political situation remains unstable

during the transition period in many of these countries. They fled for their

lives to exile once before, and they want to keep that option open," said a

Phnom Penh based diplomat.

A US government internal cable sent to all

embassies in February offered instructions on how to deal with U.S. citizens

serving foreign governments. It cited several "potentially expatriating acts"

which include "joining another country's armed forces" or "taking an oath of

allegiance to another government". Scores of Cambodian-Americans fit that bill.

It also requires embassies, under section 349 of the US Immigration and

Nationality Act of 1952 , to inform Washington of any "high level official in a

foreign government in a policy making position" who is an American citizen.

But US diplomats say that the courts have now interpreted that Americans

can serve in foreign governments as long as they had "no intent of relinquishing

citizenship." In effect, it is largely up to the American citizens, according to

current US government legal interpretation, whether they choose to give up their

citizenship when they join the ranks of a foreign government.

Indeed,

foreign governments find benefits in having their citizens in positions of

influence. It does not hurt Australia, for instance, to have the Cambodian

Foreign Minister hold Australian citizenship. Nor is it detrimental for

Australia-which dominates the telecommunications industry in Cambodia-to have

Australian citizens in charge of the Ministry of Post and Telecommunications.

The French, who have campaigned strongly for the reemergence of

Francophone in Indochina, can only be pleased to have the Cambodian Minister of

Culture a French citizen. And the Americans have used Cambodia's top cop, an

American citizen, You Hokry who hails from Maryland and serves as minister of

interior, to get US citizens in a pickle extra attention.

But there are

numerous potential minefields in this new post cold war phenomena. It is well

known that many Cambodian government officials who hold dual nationalities are

lining their pockets with kickbacks, and their reasons for returning to Cambodia

may be less than altruistic. Some Cambodian officials believe that many are here

to cash in and have little interest in remaining in Cambodia.

But if

they are US citizens, they must file US taxes. "The law is clear. You must

declare all your income, whether illegal or legal," said a spokesman for the

United States Internal Revenue Service. The US tax laws are often used to collar

bad guys involved in more difficult-to-prove criminal activities, such as drug

running. As an example the IRS spokesman cited Al Capone, the famous US gangster

of the 1930's, who was ultimately jailed for tax evasion. It is common practice

for Cambodian government officials to receive kickbacks, and rumors abound of

the millions of dollars being pocketed by various officials.

Current

Finance Minister Kiet Chhon, estimated that lost revenues from corruption is

about US$100 million a year-or more than one-third of internally generated

revenue.

"It is shameful," he said.

Senior government ministers

privately grouse about a number of their colleagues who are on the take. One

example is over a recent US$1.3 billion contract awarded to a little known

Malaysian firm, Ariston, for gambling casinos and related development projects

in the seaside resort of Sihanoukville. Two senior government officials say they

have "proof" that another senior government official-who holds an American

passport-received a US$10 million kickback for awarding the contract to Ariston.

They say that other companies, including the American hotel firm Hyatt, who bid

for the contract "never had a chance" and the corrupt process did "immeasurable

damage to our reputation among investors."

Former Finance Minister Sam

Rainsy, sacked last fall, and the country's most aggressive anti-graft fighter,

said on March 2: " I have spoken with one of the other bidders which did not win

the contract...They have been asked ten million dollars in cash. They (were told

) that 'if you give us 10 million US dollars the contract is for you.'" Senior

government sources say the official who received the kickback is an American

citizen and the company in question which was denied the contract was an

American firm. American companies are prohibited by American law from paying

bribes to foreign governments, but it is unclear whether American citizens

working for foreign governments can receive them without breaking American

law.

"In the last few months, the Royal Government of Cambodia has signed

a number of contracts with foreign private companies in circumstances which are,

to say the least, dubious. These dubious contracts are seriously harmful to the

country, the administration of which has become more chaotic and less

transparent," said Rainsy. He himself is a French citizen, an elected Member of

Parliament, and regularly rates as one of the Kingdom's most popular politicians

in public opinion polls.

Furthermore, it remains untested, say legal

experts, whether foreign nationals holding senior government portfolios could be

charged under criminal and civil laws that apply to the country they hold

citizenship in. Of particular concern could be such positions as Minister of

Interior or senior officers in the Ministry of Defence who hold American or

other passports and ultimately are responsible for the conduct of their

subordinates, human rights lawyers point out.

In Cambodia, both the

police and military have been repeatedly implicated in human rights abuses

including torture and murder in recent years. Rarely, despite cases with

overwhelming evidence, are the offenders arrested or prosecuted. The U.S.

Torture Victims Protection Act does allow for American authorities to prosecute

American or other citizens implicated in torture overseas.

Amnesty

International, in a report to be released on 14 March, a copy of which has been

obtained by the Post said "members of the armed forces and police are able to

impose their will on the civilian population with impunity, committing acts of

violence including deliberate and arbitrary killings and extra judicial

executions....the Cambodian authorities appear to lack the political will and

ability to bring these violators to justice." The report, and an earlier one

released by the United Nations Center for Human Rights, cite numerous cases of

torture, including military officers involved in eating the livers and gall

bladders of their prisoners, and cutting off the heads of prisoners who are

alive and under interrogation. The government has, to date, refused to arrest

the officers involved.

"Theoretically, they could be charged with, say,

conspiracy to obstruct justice," said one human rights lawyer, citing superior

officers - who hold foreign citizenship - of subordinates involved in torture.

The Cambodian Co-Minister of Interior and scores of senior officers in both the

national police apparatus and the military hold US passports.

But "There

would have to be some act committed on American soil," insisted a US government

lawyer responsible for analyzing such issues. "In general, U.S. law does not

follow them around."

But Cambodia's reputation for political thuggery has

even spilled over to American soil. Last year, a Cambodian general-an American

citizen- was back in California and allegedly threatened a California-based,

Khmer language newspaper editor with arrest and death if he returned to Cambodia

because of articles critical of the new government, according to complaints

filed with U.S. authorities by the newspaper.

U.S. government sources say

the general was back in the U.S. to take care of his annual tax obligations,

when he read the articles that offended him.

And last month, when an

American relief worker in a remote province suffered a heart attack, an official

of the Civil Aviation Authority refused to allow an emergency medical airplane

run by a non-profit Christian relief organization to take off from Phnom Penh

until "fees" were paid. The Civil Aviation official is an American citizen.

Could an American citizen be charged with relevant criminal or civil

complaints-such as extortion-committed against another American citizen, even

though the criminal act was committed on foreign soil? Such questions are

largely, so far, in uncharted territory.

"To tell you the truth, we don't

like to talk about it. It's a headache," said one American diplomat.

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