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Draft anti-corruption law stuck in limbodia

Draft anti-corruption law stuck in limbodia

By GEMMA DEAVIN
By GEMMA DEAVIN

A traffic policeman takes money from a driver on Street 182, Phnom Penh, on February 14.

In today's Cambodia, the God of Impunity reigns side by side with the King of Corruption." Or so reckoned King Norodom Sihanouk in 1999.

 

Nine years later, little progress has been made in the fight against embezzlement, graft, nepotism and outright bribery, and all eyes remain on an elusive draft anti-corruption law seen as a prerequisite to clearing up shady deals in the Kingdom.

 

"It is a necessary tool,” Sek Barisoth, executive director of the Mainstreaming Anti-Corruption for Equity (MACE) program, run by PACT Cambodia, said of the proposed law.

 

“Just like in fighting, you take the most appropriate weapon. It is a matter of finding a way to use this weapon effectively.”

 

Few people, though, have a firm grip on this tool that promises to take down tyrants and uncertainty surrounds the 34-page draft law. It is believed to be languishing in the Council of Ministers offices in Phnom Penh.

 

World Bank director Nisha Agrawal told the Post that she believes the anti-corruption law will be passed, but doesn't know when.

 

“It has been a frustratingly long wait,” the outgoing country manager said, adding the law “is not a magic bullet – it is just one of many things that need to be done to fight corruption in this country.”

 

Agrawal said reforms in the management of public finances were helping reduce corruption in Cambodia but passing the anti-corruption law would send a clear message about the government’s intentions. (See interview with Nisha Agrawal on page 2).

 

Prime Minister Hun Sen has said he is committed to the work of Cambodian and international experts in creating create an anti-corruption law “with comprehensiveness and transparency."

 

But in June 2007 he signaled further delays awaited the passing of the law, announcing that lawmakers must first strengthen the criminal code to avoid contradictions between laws.

 

"The huge issue is that we don't know if the draft law has been put to the National Assembly and if it complies with international standards,” said Aaron Bornstein, Chief of Party at PACT, the USAID funded anti-corruption program.

 

Son Chhay, an MP for the Sam Rainsy Party and Chairman of the Committee for Foreign Affairs, said he hopes the draft law will reach the National Assembly before elections this July. 

 

Barisoth, however, said he was doubtful the government will act so swiftly due to campaign commitments.

 

"If the anti-corruption laws were to happen, they should happen before the election. I am less optimistic of it happening after the election,” Barisoth said. 

Independence questioned

Even with political motivation, other obstacles to a Cambodian anti-corruption law remain.

 

Theary Seng, executive director of the Center for Social Development, said Cambodia should ratify the United Nations Convention Against Corruption before a domestic corruption law is passed. This would ensure international standards are adhered to, she said.

 

Cambodia’s draft law aims to redefine corruption from the current UNTAC law to provide enough legal scope to combat it effectively. It allows for prison terms of 5-10 years and fines of up to about US$250,000.

 

If passed, the law would see the formation of a Supreme National Council against Corruption consisting of two sections. The first section would be a board of directors representing the King, Senate, National Assembly, existing government, National Audit Authority, Supreme Council of Magistry and the Constitutional Council. A second section would comprise an executive body that conducted day-to-day investigations.

 

"There is a lot of argument in terms of guaranteeing the independence of this body – in my opinion its independence is doubtful,” Barisoth said of the investigative branch.

 

According to the draft law, the board of directors will have control over the executive arm of investigators.

 

"The Supreme National Council should be an advisory body rather than a board of directors. The executive body should be independent of the first representative section in conducting its day to day activities," Barisoth said.

 

Bornstein added: “The financial control [of the Supreme National Council] – in an ideal world – would not be controlled by the Ministry of Finance.

 

“There should be independent control of the budget.”

 

Son Chhay, of the Sam Rainsy Party, said Cambodia’s current institutions were not up to the task of implementing the anti-corruption law.

 

"We cannot rely on any institution to apply the law to oversee the behavior of the government. The government does not pay attention to strengthening our institutions,” Chhay said. "The Prime Minister has become God."

 

The current draft is dated September 8, 2006 and was formed by the Council of Jurists, Economic, Social and Cultural Affairs Observation Group with French assistance.

 

Experts say work still needs to be done on the draft, which as yet offers no protection to whistleblowers.

 

“If you lodge a complaint and after investigation it is found the complaint was not proven then you can be punished,” said Barisoth.

 

Meanwhile, traditions of gift-giving raise different obstacles. In a more formalized practice, those who donate $100,000 or more to the government may be appointed as Okhna by royal decree. 

 

The Okhna system “is based on Khmer customary law which provides Khmer citizens the opportunity to become Okhna if they support the social system,” said Kip Touch, program officer of the Land and Natural Resources Project, run by the Community Legal Education Center.

 

Touch said there were no legal provisions clearly supporting this system.

 

Barisoth noted that there was nothing in the draft anti-corruption law that would prohibit the Okhna system but said that, morally, donations should be made to the government rather than to an individual. “The current draft law outlaws gifts,” he said.

 

Barisoth warned that passing of an anti-corruption law would not mean the elimination of murky deals overnight.

“It’s going to be a long process,” he said. “When corruption is found, the question is whether or not any action is taken to address it – that is when corruption will be under control.”

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