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Global lessons for NGO law

Good NGO legislation should enshrine the rights of Cambodian citizens to speak out, associate and organise.

ON December 15, the government finally made public a draft of its new NGO law, trumpeting it as a tool for fighting terrorism and crime, increasing transparency in the Kingdom’s vast NGO sector and regulating groups that are “working for the opposition”.

As civil society workers across the nation brace for the law’s passage, local activists have voiced fears about the possible effects of the legislation.

Coming amid a resurgence in government confidence – which has seen the jailing in absentia of opposition leader Sam Rainsy and public threats of the expulsion of United Nations officials and diplomats – local rights group Licadho described it as “the most serious threat to civil society in years”.

If implemented in its current form, critics say the draft law – lacking sufficient safeguards – will violate the right to freedom of association and hamper NGO activities, especially those of small community organisations.

They have called on the government to accept a longer period of consultation and a joint working group to finish drafting the law. Licadho and other organisations have stated that they don’t want an NGO law at all.

As the two sides trade invective in both public and private, the implementation of similar regulations in other countries may provide a cautionary tale about the granting of too much power to governments to regulate civil society.

The view from Dhaka
Representatives of the Bangladeshi human rights organisation Odhikar, founded in 1994, say that its activities have been increasingly restricted under current regulations that place tight controls on any NGO activities linked to foreign funding.

In a rights report issued last month, Odhikar documented an increasing level of government interference in its programmes, in addition to the surveillance and intimidation of the state’s security apparatus.

In August 2009, the government’s NGO Affairs Bureau, which is under the authority of the Prime Minister Sheikh Hasina’s office, ordered Odhikar to halt a programme focused on documenting and preventing torture, citing the “reservations” of the Ministry of Home Affairs.

Though Odhikar submitted a writ petition to the High Court, which eventually ruled against the government, the message from the authorities was clear, said Odhikar’s executive secretary Adilur Rahman Khan.

“Human rights organisations, especially [those] which are critical against the atrocities of the government, torture, ill-treatment and impunity of the regime, like Odhikar, face massive difficulty in getting their projects approved,” Khan said via email.

In recent months, the organisation has documented numerous instances in which security or police officials paid visits to Odhikar’s offices to request information from its leadership.

In November, after several such visits, an official warned Odhikar’s director that the government was “extremely annoyed” with the organisation, and that officers from the Special Branch of the police were “constantly monitoring” their office.

“Such incidents of constant visits, telephone calls and request for information that can be obtained from government records are clear examples of harassment and intimidation and an attempt to disrupt the functioning of a human rights organisation,” states the Odhikar report.

Other countries too have seen a recent tightening of regulations. In a special report issued last month, the United States-based International Centre for Not-for-Profit Law took aim at what it termed the “wave of constraint” embodied by legal developments in countries such as Venezuela, Ecuador, Honduras, Iran and Bahrain, all of which took place in November and December.

“The restrictions proposed in these laws will create a burdensome web of regulations for civil society groups and are evidence that the backlash against civil society is ongoing, transcending legal systems and political cultures,” the report states.

ICNL said Cambodia’s law also bore many of the hallmarks of this global crackdown, including restrictions on the number and nationality of NGOs’ founding members, onerous registration requirements, government powers to suspend or terminate organisations and limits on the activities of foreign NGOs.

Discretionary authority in the draft law has emerged as a critical issue. The Cambodian Centre for Human Rights concluded from a review of 50 countries that NGO laws should be “evaluated, first and foremost, for the vagueness of the language and the broad discretionary powers that they grant to governments”.

Best practice?
However, a number of countries, including Azerbaijan, Iraq, Kosovo, Macedonia, Mexico, Russia and Serbia, have recently adopted changes to their legal frameworks that safeguard civil society, according to ICNL.

“Good NGO legislation should enshrine the rights of Cambodian citizens to speak out, associate and organise, which underpin the very existence of civil society and which form the basis of effective community development,” said David Robinson, ICNL’s programme manager for Asia and the Pacific.

“However, as in Cambodia and also in Vietnam, there was a reluctance to endorse and encourage the local community decision-making and action that would result from progressive, enabling legislation,” he added.

In contrast, the ICNL points to a law passed in Iraq last year, which recognised “the right to form an NGO as well as the right to associate without forming a legal entity”. It also includes “objective rules” for registration and operations that limit the government’s discretion in refusing registration or interfering with NGO affairs. NGOs are permitted to fundraise both domestically and abroad.  

Though ICNL criticised the Iraqi law for restrictions on foreign NGOs, it noted that the legislative process included a large coalition of civil society members with support from the UN that introduced revisions to a more restrictive draft law proposed by the government.

Adapting to political realities
However, some say that within the current Cambodian context, the perfect may well be the enemy of the good. Hisham Mousar, a former staffer for local rights group Adhoc and the Paris-based International Federation for Human Rights, said NGOs should ensure that the law is consistent with human rights, but that they would be better off with a law than without.

“It reflects the reaction, the continuous reaction of civil society, is to refuse,” said Mousar, who currently heads the French cooperation programme at the Royal University of Law and Economics.

“But we have to build the rule of law, we have to build something. We cannot say that the judge is not independent, we cannot say that we do not trust in the lawmaking process, and [on] the other hand, continu[e] to be here, to take salary, to have big cars, [to have an] easy life in Cambodia.”

Mousar said civil society organisations felt particularly vulnerable because of the lack of political opposition following the Cambodian People’s Party landslide victory at the 2008 national elections.

“They prefer to wait for a better day when they can benefit, [when] they can enjoy, as in the past, the umbrella of political opposition,” Mousar said. “Now they are too exposed.”

Mousar argued in favour of an engagement between civil society and government – despite the mismatch in power between the two sides.

Council of Ministers spokesman Phay Siphan said the law was geared towards creating “one civilised nation”.

“If you live in the jungle you don’t need a law – but in society … you have to comply with the law,” Phay Siphan said.

Ultimately, however, Robinson said an NGO law should do more than simply place restrictions on civil society.

“[Such laws] should not simply be a mechanism for encouraging and controlling international NGOs providing aid in line with pre-determined government priorities,” he said.

“This is, to a large degree … what the Cambodian law provides for.”

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