Joint Letter: Withdraw Draft Law on Associations and Non-Governmental Organisations

​Samdech Akka Moha Ponhea Chakrei Heng SamrinPresident of the National Assembly
Phnom Penh
Kingdom of Cambodia22 June 2015

Samdech,

RE: WITHDRAW DRAFT LAW ON ASSOCIATIONS AND NON-GOVERNMENTAL ORGANIZATIONS

We, the undersigned international NGOs and membership organizations, call on the National Assembly ofCambodia to immediately withdraw the draft Law on Associations and Non-Governmental Organizations(LANGO).

The draft LANGO appears designed to restrict the legitimate activities of civil society and human rightsdefenders in violation of the right to freedom of association, a right protected by international humanrights instruments to which Cambodia is a party, as well as by the country’s Constitution.

Drafted in a closed and flawed process, there has been no consultation and no opportunity to commenton an official draft of the law, despite repeated requests by civil society groups. Calls for the governmentto consult civil society (#StopandConsult) have been ignored. The draft law was withheld from the publicuntil last week, when it was shared by a spokesperson of the Council of Ministers days after a leakedversion was circulated. This process flies in the face of international standards on participation.

UN treaties and the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs ofSociety to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (UNDeclaration on Human Rights Defenders), adopted by a consensus of States including Cambodia,protects the right of everyone, individually and in association with others, to have effective access toparticipation in the government of his or her country and in the conduct of public affairs. This includesthe right to submit to governmental bodies concerned with public affairs, criticism and proposals forimproving their functioning and to draw attention to any aspect of their work that may hinder thepromotion, protection and realization of human rights and fundamental freedoms.

The draft LANGO contains 39 articles outlining a dual regulatory regime for domestic and internationalcivil society groups under the respective aegises of the Ministry of Interior (MoI) and Ministry of ForeignAffairs and International Assistance (MoFA), with additional regulatory and oversight authority restingwith other government ministries and agencies.

If passed, the draft LANGO will severely undermine the crucial role that civil society plays in Cambodia.It outlines a complicated series of bureaucratic registration and reporting obligations for civil societygroups and threatens to lend legislative legitimacy to the control and censorship of activities undertakenby domestic and international associations and NGOs.

The right to freedom of association is guaranteed by Article 22 of the International Covenant on Civil andPolitical Rights (ICCPR), to which Cambodia is a State party, and by Article 42 of Cambodia’sConstitution. The right to freedom of association may only be limited or restricted in certain narrowlydefined circumstances. Article 22 of the ICCPR provides for a three-part test for limitations on freedomof association under which no limitation on the right is permitted unless it is: (1) prescribed by a law thatis clear and accessible; (2) in pursuit of a legitimate interest as outlined in Article 22;1 and (3) is strictlyand demonstrably necessary.

The LANGO contains numerous provisions that do not satisfy one or more of the three components of thistest, in violation of the right to freedom of association:

Universal mandatory registration: The draft mandates registration for all domestic and internationalassociations and NGOs operating in the country and provides for fines and criminal sanctions for groupswhich carry out activities without registration and, where foreign associations and NGOs are concerned,for the expulsion of foreign staff from the country. It is noteworthy that, unlike the 2011 draft of theLANGO, the current draft contains no reference to community based organizations and fails to exemptthem from registration, leaving open the possibility that all groups, however small or informal, will berequired to register if the draft is made law. The right to freedom of association protects associations thatare not registered.2 Rather than upholding this principle, the LANGO will provide for the punishment ofindividuals engaged in legitimate activities protected in the exercise of the right.

Arbitrary restrictions on founding members: To establish a domestic association or NGO, the draft LANGOrequires five founding members, aged 18 years or older, who have not held leadership positions in NGOsor associations previously deleted from registration. This is an arbitrary numerical requirement3 whichunfairly and unjustifiably excludes identifiable categories of individuals from enjoying the right tofreedom of association. In the case of individuals under 18 years of age, their right to freedom ofassociation is also guaranteed by Article 15 of the Convention on the Rights of the Child, to whichCambodia is a party, subject only to similar limitations as set out in Article 22 of the ICCPR.

Onerous registration requirements: The draft LANGO outlines an onerous, bureaucratic process for theregistration of domestic and international associations and NGOs, requiring the provision of excessivedocumentation and banking information. In the case of domestic groups, a detailed governing statuteoutlining, amongst other things, “sources of resources and properties” and rules for their management,must be provided to the MoI. International groups are required to provide, amongst other things, a letter outlining budgets for projects for a period of six months, together with a letter of support for all projectsfrom a government ministry or institution. The draft includes a continuing obligation for international anddomestic groups to inform authorities within 15 days of, amongst other things, changes to leadership,office location, and, in the case of domestic groups, the content of the governing statute. Theserequirements are extremely burdensome and do not appear to serve any legitimate interest as is requiredfor a restriction to be in accordance with Article 22 of the ICCPR.

Arbitrary denial of registration: The draft vests complete discretion in the MoI and MoFA in decidingwhether or not to accept or reject applications for registration by domestic and international groupsrespectively, failing to outline any objective criteria to guide the determination process.

The MoI has the discretion to determine whether an application by a domestic group “does not fulfil theconditions for registration” and has the added option of rejecting the application of a domestic groupwhose purpose and objective “could adversely affect public security, stability and order, or generate athreat to national security, national unity, or the culture, traditions and customs of Cambodian nationalsociety”. The MoFA must examine the content of the documentation provided by an internationalassociation or NGO and “decide whether or not it is willing to enter into a memorandum ofunderstanding”, the document required for international groups to operate in the country.

Where a domestic association or NGO does not fulfil the conditions in a written application, the MoI mustprovide written notification inviting corrections to the application. However, there is no obligation toprovide a written explanation for denying a corrected application, nor in the case that an application isdenied on the grounds that it “could adversely affect public security, stability and order,” etc. Similarly,there is no obligation on the part of the MoFA to provide a written explanation to an internationalassociation or NGO whose application for a memorandum of understanding is denied.

Whereas a domestic association or NGO has the right to appeal a denial of registration by the MoI, nosuch right of appeal exists for international groups whose application for a memorandum ofunderstanding is rejected by the MoFA.

These provisions are vague and allow considerable scope for denials of registration on arbitrary grounds.4Several of the justifications offered as the grounds for denying an application by a domestic associationor NGO – such as maintaining national unity, or protecting culture, traditions, and customs of Cambodiannational society – are overly broad and are not explicit legitimate interests as defined by Article 22 of theICCPR.

Requirement of political neutrality: The draft LANGO requires domestic NGOs, and international NGOsand associations to “adhere to a stance of neutrality vis-à-vis political parties”, and provides for thesuspension and dissolution of groups that violate this provision. The requirement of political neutralityopens the door to arbitrary government restrictions on organizations which engage in advocacy orcriticism of government actions, potentially stifling legitimate criticism of political processes, draft lawsand policies. As well as a violation of freedom of association, this is also a violation of the right tofreedom of expression.5

Onerous reporting requirements: The draft law provides for an onerous reporting regime for domesticNGOs and international associations and NGOs on activities and finances. The complex reportingobligations include reporting to several ministries: the MoI and Ministry of Economics and Finance (MEF)for domestic NGOs, and the MoFA, MEF and Council for the Development of Cambodia for internationalassociations and NGOs. Domestic NGOs and international associations and NGOs are required to provideauthorities with copies of agreements concluded with donors outlining programme work and financialsupport as well as copies of annual reports sent to donors. In the case of domestic NGOs, they are alsorequired to file annual reports on activities and finances. The MoI may request annual reports onactivities and finances from domestic associations “[i]n case of necessity”. The MEF or National AuditAuthority may “conduct an examination to check on and audit” an international association or NGO “[i]n case of necessity”. The term “in case of necessity” is not defined in the draft, and is vague andoverbroad, leaving such determinations open to abuse. This complex and bureaucratic regime isunnecessary and requires a level of reporting that serves no legitimate interest.

Suspension, dissolution and termination of a Memorandum of Understanding: The draft LANGO includessweeping provisions for the suspension and dissolution of domestic and international associations andNGOs, and the termination of the memorandums of understanding concluded by internationalassociations and NGOs with the MoFA. Such measures may be taken by the MoI or MoFA where groupsviolate the principle of “neutrality”, fail to meet their reporting requirements, conduct activities“adversely affecting public security, stability and order or generating a threat to national security,national unity, or the culture, traditions and customs of Cambodian national society”, or violate their ownstatutes or memorandums of understanding. These sweeping provisions lack procedural safeguards, areunnecessary and so vaguely defined as to be open to abuse; for example, Article 35 of the draft LANGOprovides for the termination without notice and without right of appeal of a memorandum ofunderstanding with a foreign association or NGO that “does not act properly in accordance” with it.

The draft LANGO is a severely flawed document that should be withdrawn by the National Assemblyimmediately. The UN Declaration on Human Rights Defenders reaffirms that the prime responsibility andduty to promote and protect human rights and fundamental freedoms lies with the State. If the LANGO ispassed, the government will be violating the right to freedom of association, a right guaranteed to allindividuals by international human rights law, and the right to participate actively in the political,economic, social and cultural life of the nation, a right guaranteed in Article 35 of the country’sConstitution.

For the reasons outlined above, we respectfully call on the National Assembly to immediately withdrawthe LANGO and allow Cambodia’s civil society to continue to function as a critical player in providingcrucial services, supporting development and ensuring the protection and promotion of human rights.

Signed:

ActionAid
Agency for Technical Cooperation and Development (ACTED)Amnesty International (AI)
Asian Democracy Network (AND)
Asian Forum for Human Rights and Development (FORUM-ASIA)CARE International in Cambodia
Catholic Agency for Oversees Development (CAFOD)
Civil Rights Defenders (CRD)
Dan Church Aid / Christian Aid (DCA/CA)
Diakonia
Enfants & Développement
FIAN International
Finn Church Aid
Forum Syd
Global Witness
Heinrich Böll Stiftung
Human Rights Watch (HRW)
Human Rights Now (HRN)
International Accountability Project (IAP)
International Commission of Jurists (ICJ)
Investing in Children and their Societies (ICS)
IFEX
Lawyers’ Rights Watch Canada
LICADHO Canada (LC)
Norwegian People’s Aid (NPA)
Oxfam
People in Need (PIN)
Protection International (PI)
Solidarity Center
Welthungerhilfe / German Agro Action
World Hope International (WHI)
World Organisation Against Torture (OMCT)

1 The legitimate interests outlined in Article 22 are “national security or public safety, public order (ordre public), theprotection of public health or morals or the protection of the rights and freedoms of others”.
2 Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UNDoc. A/HRC/20/27, 21 May 2012, para. 56. See also, Report of the Special Representative of the Secretary-Generalon human rights defenders, Hina Jilani, UN Doc. A/59/401, 1 October 2004, para. 82(a): “the Special Representativebelieves that registration should not be compulsory. NGOs should be allowed to exist and carry out collective activitieswithout having to register if they so wish”.

3 The Special Rapporteur on the rights to freedom of peaceful assembly and of association considers as best practicelegislation that requires no more than two persons to establish an association. See, Report of the Special Rapporteuron the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012,para. 54.

4 The Special Representative of the UN Secretary-General on Human Rights Defenders has stated that “NGO lawsmust provide for clear and accessible information on the registration process” and that “decisions to deny registrationmust be fully explained”. See, Report of the Special Representative of the UN Secretary-General on human rightsdefenders, Hina Jilani, UN Doc. A/59/401, 1 October 2004, para. 82 (d) and (e).
5 The Special Rapporteur on the rights to freedom of peaceful assembly and of association has stated that“[a]ssociations should enjoy, inter alia, the rights to express opinion, disseminate information, engage with the publicand advocate before Governments and international bodies for human rights, for the preservation and development ofa minority”. See, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association,Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 64.