T HE draft Immigration Law has come under strong criticism from the UNHCR and the UN Center for Human Rights who fear it gives the government wide ranging powers to arbitrarily remove unwanted people from the country. The legislation is expected to be top on the agenda when the National Assembly sits on Aug 18.
"Our concern is that the immigration law is expected by many to be used as an instrument to expel out of the Kingdom of Cambodia a large number of non-Khmer people," said Serge Ducasse, charge de mission with UNHCR, in a public forum at the Foreign Correspondents' Club of Cambodia on Aug 3.
"Abuse, ethnic cleansing, mass deportation may accrue, and degenerate within the internal arrangements of control [in Cambodia]."
He said as a matter of record UNHCR had been requested twice in the last month [by the government] to set-up reception centers for the clearing and repatriation of ethnic Vietnamese living Cambodia.
UNHCR Senior Protection Officer Walter Hoffmann in an interview with the Post said the Vietnamese Government is unlikely to accept large numbers of expelled people. UNHCR is worried the law will create many refugees and lead to tension between the Cambodian and Vietnamese Governments.
Ducasse added: "UNHCR is concerned that refugees are not specifically addressed as a special category of aliens [in the law]."
Balakrishnan Rajagopal, an officer with the United Nations Center for Human Rights in Phnom Penh said the main problem with the draft was the absence of a definition of nationality - who is and is not a Cambodian national.
"In the country there is a legal vacuum and there are large numbers of people in the country whose nationality has not been determined so far," he said.
"It is very easy for [the government] to expel a large number of people without any fairer procedures [than the current draft law]."
He added that he was worried that a large number of people who had been living in Cambodia a long time and demonstrated ties to the country could be expelled, again in violation of international conventions to which Cambodia is a signatory.
"We have received confirmed reports of a survey of all ethnic groups in the country under an order from the Ministry of Interior ... and some people have had their [residency] ID cards confiscated on the basis of the survey," Rajagopal said.
He added that he had heard there had been an instruction from the Interior Ministry to border guards to give people entering the country on Cambodian passports Khmer language proficiency tests.
Guards were instructed to confiscate the passports of people who failed the test and stop these people from entering the country, Rajagopal said.
He said such a policy could interfere with the freedom of movement into and out of the country of many people who had resided in Cambodia for many years but were not fluent in the Khmer language - especially some tribes in the remote provinces.
Rajagopal said the draft contained many provisions which could be said to be arbitrary.
He said as an example the draft required non-Cambodians to obtain permission from local police when changing residence.
A legal expert who requested anonymity said: "Potentially a person of non-Khmer origin, who may have been living in Cambodia for many years, may have to bribe local police to get permission to change his residence.
"We would have a situation where low-level police are defacto determining the nationality of many of the ethnic Vietnamese, Chinese and Chams living in Cambodia."
Rajagopal said: "The penalties under the draft law are sometimes too harsh and unnecessary. For instance, the draft provides that a person who illegally enters the country shall be imprisoned for a certain number of months and then deported. Normally countries just expel people for this.
"The procedures for deportation are extremely ambiguous and scanty .. and there are inadequate provisions for people to appeal deportation orders."
According to a copy of the draft law obtained by the Post, Article 34 empowers the Ministry of Interior to deport non-Cambodians simply by signing an order, and Article 38 says the deportation must be done within seven days.
Hoffmann said: "In practice, because deportation must be carried out in seven days, people will find they have been forcibly moved to another country by the time their appeal against such deportation is heard in court."
He added that the law could be used to keep out the 6,000 refugees currently languishing on the Cambodian/Vietnam border.
"The immigration law places these people in the same position as a tourist or businessmen intending to enter the country," he said.
If the Royal Government refuses to issue these refugees with passports and visas they will never be allowed to legally return to Cambodia."
Rajagopal said the law was not so much an immigration law but rather a law to control the movements of foreigners into and within the country.
A foreign legal expert said: "The draft is full of draconian provisions which are symptomatic and reflect the ideology of a government attempting to create a police state."
The legal expert said: "Article 16 empowers the Ministry of Interior to proclaim provisions which prohibit foreigners and other non-Khmers from entering or residing in a number of localities or any place within the country.
"Thus potentially the Interior Ministry could control the movements of foreigners, ethnic Vietnamese, Chinese and the Chams within the country.
"Expat aid workers or journalists may potentially be stopped by the Interior Minister from entering certain regions and investigating human rights violations.
"Article 21 allows police to conduct controls and checks on all foreigners who reside under their control.
"If this section is intended to empower police to carry out some sort of broad active investigation of foreigners and arbitrarily interfere with their privacy serious human rights questions may be implicated.
"Expats, tourists and businessmen will not like the law. Every time a foreigner stays at a hotel or rents a house, Article 16 says the owner of the hotel or house must inform the local police.
"Article 7 suggests tourists may only be able to enter Cambodia if they have already booked their return tickets, and businessman may only be allowed to stay here for a maximum of six months.
"The law says foreigners must carry a residency ID card with them at all times, if it is confiscated the foreigner must leave the country within 7 days. Article 18 allows the Interior Ministry to exercise control over what jobs foreigners are entitled to do."
Both Rajagopal and Ducasse said the government had not responded to criticism from their organizations.