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
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
"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
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
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.
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.
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.
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
"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
"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.
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.
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.