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Comments on the Third DraftLaw on Associations and Non-Governmental Organizations

of the Kingdom of Cambodia

August 1, 2011

The International Center for Not-for-Profit Law (ICNL) is an international organization that provides

technical assistance, research, and education to support the development of appropriate laws and

regulatory systems for civil society in countries around the world. ICNL has worked on civil society

law reform projects in over one hundred countries; in Asia, ICNL has worked in China, Indonesia,

Vietnam, Lao P.D.R., Timor-Leste, Mongolia, and India. ICNL has worked with the United Nations

Development Programme, United Nations Volunteers, the Community of Democracies Working

Group on Enabling and Protecting Civil Society, the European Union, the Organization for Security

and Cooperation in Europe, the United States Agency for International Development, New Zealand

AID, the Swedish International Development Agency, human rights groups, private foundations, and

scores of in-country colleagues.

These comments address the third draft of the Cambodian Law on Associations and Non-

Governmental Organizations, which was released by the Royal Government of Cambodia on July 29,

2011. ICNL has reviewed the draft law solely based on a translation1

of the third draft, and not based

on a review of the broader legal framework within Cambodia, such as the Cambodian Civil Code,

labor law or other laws. The analysis is a summary analysis only, and not intended to provide a

comprehensive review of the draft law; we invite those interested to review ICNLs more

comprehensive comments on the two earlier drafts.

ICNL believes that sound legislation is the result of a fully participatory and inclusive consultation

process, which provides for constructive dialogue between the government and civil society. We

urge the Government of Cambodia to engage in further dialogue with civil society and to take into

meaningful account the views of organizations to be governed by the new law. ICNL remains

concerned by the current draft law and stands ready to provide additional information or technical

assistance as necessary and appropriate.

Summary Analysis

The third version of the draft law is little changed from the second version, and most of the

fundamental issues of previous drafts remain.

The third draft law does, however, introduce certain limited improvements:

1ICNL has relied on the unofficial translation provided by the Office of the High Commission for Human Rights

(OHCHR) on July 29. We extend our appreciation to OHCHR for the translation.

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The draft law revises certain provisions relating to the registration process for domesticentities. First, the time period for government review of registration applications by

domestic associations and NGOs is reduced from 90 days to 45 days. Second, the

government is required to notify domestic applicants in writing of problems in the

application and to provide applicants with the opportunity to modify the application within a

45-day period. Third, the government then must review any modified domestic application

within 15 days. Fourth, the draft law provides for the right to appeal for domestic applicants.

(Article 17) Fifth, the draft allows registration of domestic entities at the sub-national level

(Articles 14-18). As noted below, however, the third draft still lacks clear and objective

criteria for the denial of registration.

The draft amends certain provisions affecting foreign NGOs. Under Article 30 et seq.,foreign NGOs seeking to implement aid projects in Cambodia must enter into a

Memorandum of Understanding with the Cambodian Ministry of Foreign Affairs and

International Cooperation (MFA). Article 6 has been revised, however, to state that foreign

NGOs operating activities for less than one year need not enter into this Memorandum of

Understanding. These organizations are required, however, to notify the MFA about their

aid projects, duration of activities, and location. In addition, Article 33 has been revised to

require the government to provide a written explanation if it decides not to support the aid

projects of a foreign NGO, though both objective criteria to guide the governments

determination and the right to appeal MFAs decision in court are noticeably absent.

The third draft law fails to address several problematic issues included in earlier versions of the draft

law, including the following:

The draft law fails to ensure that denial of registration is consistent with international lawstandards. Article 17 states that the Ministry of Interior or sub-national administrative

institution shall examine the documents and legality of the statute of the association or

domestic non-governmental organization and shall decide whether to accept or reject the

registration It is not clear if the legality standard is intended to limit government

discretion in deciding to accept or reject registration; it is not clearly presented as the sole

basis for denial. Even if legality is intended as the sole criterion for denial, however, it is

not consistent with international law. It would allow the government to base denial on

inconsistency with any provision of law, whether compliant with international human rights

law or not. Denial of registration clearly amounts to interference with freedom of

association, and consequently can only be justified where denial is both prescribed by law

(meaning that the law is accessible and that concerned persons are able to foresee the

consequences of their actions) and necessary in a democratic society in the interests of

national security or public safety, public order (ordre public), the protection of public health

or morals or the protection of the rights and freedoms of others. The legality standard

fails to limit government decision-making to the confines of this standard. The absence of a

clear, limited list of objective grounds for denial could have a disproportionate impact on

groups that engage in advocacy, support unpopular causes, or are critical of the government.

The draft law prohibits any activity conducted by unregistered associations and NGOs.(Article 6) Registration is thus mandatory for associations and unregistered associations are

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banned. Article 4 defines associations very broadly and seems to embrace any group (made

up of Cambodian nationals) who gather together for any purpose, whether for member

interests or public interests, provided that purpose is not-for-profit. This would seem to

cover not only social service providing groups and human rights groups, but also those

focused on trekking or football, chess or silk weaving. Article 6 then states that any

unregistered association may not carry out activities in the name of the association. If this is

interpreted to require mandatory registration for groups covered under Article 4, then this is

a violation of international law. The freedom of association protects both groups with legal

entity status and without legal entity status.

The draft law limits eligible founding members of both associations and NGOs toCambodian nationals. (Article 4) Consequently, the draft law excludes refugees, stateless

persons and others resident in Cambodia from forming associations or domestic NGOs. This

nationality requirement constitutes a clear infringement of freedom of association, which

should be available to everyone (i.e., all individuals within the states territory and subject to

its jurisdiction).

The draft law maintains a high minimum membership requirement for associations.(Article 8) In order to form an association, 11 Cambodian nationals must be named as

members, and at least 5 governing members must handle the registration process. While the

required minimum number of founding and governing members for associations has been

reduced from the first draft, the required minimum threshold will likely impede the

formation of small mutual interest groups. A group of 8-10 individuals who wish to associate

to pursue a legitimate collective purpose would not be permitted under the draft law to form

an association as a legal entity. The interference is exacerbated where the law, as is the case

here, prohibits unregistered groups to carry out activities.

The draft law seems to provide inadequate standards to guide the governmentsdetermination of suspension or termination of an association or NGO. Chapter 8 of the

draft law states that involuntary termination may result through a courts judgment, but

there are no grounds for involuntary termination included in Chapter 8 to guide the courts

decision-making. Chapter 9 includes some penalty provisions, but it is unclear (at least in

translation) if this chapter provides an exhaustive list of reasons why an association or NGO

may be suspended/terminated. It is important that the drafts provisions governing

suspension/termination be clear, objective, and consistent with international law. In

addition, Article 52, which addresses liquidation of assets following a judicial ruling, provides

no guidance or limitation on how those assets can be transferred.

The draft law places constraints on associations and NGOs through notification andreporting requirements. Associations and NGOs are required to provide a written

notification to municipal hall or concerned provincial halls when implementing activities

in a given locale. (Article 43) This requirement, which is separate from and additional to the

registration process, could amount to a substantial burden on program implementation. In

addition, all associations and NGOs, large and small, domestic and foreign, are subject to the

same reporting requirements; for small mutual interest associations in particular, theserequirements could prove unduly burdensome.

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The draft law erects barriers to the registration and activity of foreign NGOs. Among otherissues, the draft law outlines a heavily bureaucratic, multi-staged registration process, which

lacks procedural safeguards, and is therefore subject to delays and subjective, arbitrary and

politicized decision-making. Where foreign NGOs are denied the ability to operate in

Cambodia, there is no right to appeal. (While the current draft provides relief to those

foreign NGOs seeking to operate for less than one year, the burdensome registration process

applies to all other foreign NGOs.) Moreover, Article 39 sets a cap on administrative

expenses (defined to include staff salaries, office equipment and other expenditures for

office functioning), limiting them to no more than 25% of the total budget. In addition, the

draft law requires mandatory collaboration with the Government of Cambodia, by stating

that a foreign NGO shall collaborate with relevant partner ministries / institutions of the

Royal Government of Cambodia when developing projects, monitoring, and evaluating the

implemented activities or results. (Article 36) Thus, there appears to be no room for

foreign NGOs to act independently of the Government in addressing public benefit goals orcommunity needs.