Workers left in limbo on union law

 The Phnom Penh Post
Shane Worrell
Tuesday, 08 May 2012

Almost six months after the latest draft of the proposed trade-union law was sent to the Council of Ministers for approval, employers, unions and workers’ rights groups are left asking the same question: What’s happened to it?

Confusion over the status of the landmark law, which includes provisions for informal workers such as tuk-tuk drivers to unionise and collectively bargain, is such that government secretary-general Nady Tann yesterday could not say where the draft law was.

“As far as I know . . . it was sent back to the Ministry of Labour, but I am not so clear where it is now,” he said. “I only see it when it is to be finished.”

Oum Mean, secretary of state at the Ministry of Labour, however, was adamant the draft law was still with the Council of Ministers.

Dave Welsh, country director of the American Center for International Labor Solidarity, said the trade-union law, which will affect workers across the country, was designed in part to show the US trade representative and the US market what Cambodia was doing to improve conditions for workers.

After initial “draconian” drafts that were “insanely suicidal” to efforts to expand market access, most of the major points union groups opposed, including criminal sanctions, had been removed, Welsh said.

“That was in November,” he said. “We assumed this would be completed by December or January. “The word from the Minister of Social Affairs now is that the government will hold off until after [commune] elections to release it.”

Included in November’s amendments was the right for informal sectors to collectively bargain.

“That totally solidifies the rights of construction sector workers, regardless of the seasonal nature of the work, tuk-tuk drivers and domestic servants,” Welsh said, adding that severe restrictions on joining unions and striking had been removed.

“It’s a very progressive step.”

Welsh said there was no reason for the government to delay the law – unless it was having second thoughts.

“Our concern is that the reason it has taken [this long] is because they want to completely revise what was in it, which would be a mistake, because we would be back to square-one. And the international trade community would be all over it. But it’s been in front of the Council of Ministers since November. It doesn’t send a great message.”

On the other side of the labour equation, Ken Loo, secretary-general of the Garment Manufacturers in Cambodia, was also confused about when the law would be approved.

“From the last round of consultation, we haven’t seen any movement; it’s a little disappointing,” he said.

As to what would be in the final version – and whether GMAC would be happy with it – Loo could not definitively say.

“Nobody has the latest version. The government has taken submissions from both sides. No law is going to satisfy everyone; however, the major concerns of workers and employers have been incorporated.”

Cambodian Center for Human Rights president Ou Virak said he did not expect the law to be introduced before next year.

“The new law could potentially add more criticism to the treatment of workers,” he said.

Therefore, he expected the government to avoid drawing attention to the industry – especially after the shooting of three women during a protest at the Kaoway Sports factory in Bavet town in February that made international headlines.

“The government is listening to buyers more than they admit to.”

Ou Virak said he also had not seen the latest draft, but said unions had been concerned factories would manipulate the law’s fine-print to favour their own unions, so it was better for the government to take the time to get it right.

“It’s a not a matter of when, it’s a matter of what they introduce,” he said.

Moeun Tola, head of the labour programme at the Cambodian Legal Education Center, agreed.

“We have to make sure those fundamental rights – to organise, collectively bargain and strike – are protected,” he said, adding that this could take time.

“Some people have told us they have sent it back to the eight working groups under the direction of the prime minister for more discussions.”

Rong Chhun, president of the Cambodian Confederation of Unions, said he had heard nothing since unions asked the Ministry of Labour on December 21 to make some further amendments.

“But unions made only small requests,” he said.

The labour and socials affairs ministers could not be reached yesterday.

---

To contact the reporter on this story: Shane Worrell at shane.worrell@phnompenhpost.com

No rush on NGO law

Source: The Phnom Penh Post
Chhay Channyda
Thursday, 29 December 2011


Prime Minister Hun Sen said the government will wait until 2014 if that is what it takes to achieve consensus on the highly criticised draft law on associations and NGOs.

Speaking at a high school graduation yesterday, the premier said Cambodia had already been waiting for 33 years for the necessary law and to wait another two or three years would hardly make any difference.

“If we have not agreed by 2012, there will be no issue, we will wait until 2013; if not 2013, we will wait until 2014,” Hun Sen said. “We have been in discussions for almost 20 years, so we will not be too early.”

The draft NGO law aims to establish a framework for the registration of NGOs and associations and to safeguard the “rights and freedoms” of the organisations, according to the fourth draft of the law compiled by the Ministry of Interior.

The Council of Ministers sent the draft law back to the Ministry of Interior to re-draft earlier this year. While the fourth draft is markedly different from the third draft, civil society organisations in Cambodia and abroad are still not satisified with the law, particularly a provision that effectively makes registration compulsory.

Despite heated public outcry over the law and a call by civil society for its abandonment, the premier said in no uncertain terms there would be a law.

“We must have this law. It is too unreasonable [to request the law be abandoned],” he said. “The government pays attention to all activities of organisations and considers this an important part of a developing country.”

Hun Sen added that the law must “be accepted by all sides” to pass and rejected criticisms that the government was dictatorial or that the National Assembly was merely a rubber stamp for the ruling party.

“Issuing this law will facilitate the humanitarian work of organisations that are willing to import materials to hand out to Cambodians, because the import tax for these organisations is exempt,” he said.

The premier’s address was welcomed by Cambodian legal experts and some civil society organisations.

“Civil society has demanded more discussion time from the government, and this is a better point to hear the delay in passing the law,” Sok Sam Oeun, executive director of the Cambodian Defenders Project said.

Ou Virak, president of the Cambodian Center for Human Rights, applauded Hun Sen’s stance.

“This is a positive result opening the discussion for longer to avoid criticism after the law goes into effect,” he said.

At an open forum with civil society representatives last week, the Ministry of Interior welcomed written and verbal feedback on the fourth draft but made no firm commitments to adopt feedback into a fifth draft of the contentious law.

Cambodia: Revise or Abandon Draft NGO Law

Source: Human Rights Watch
 Donors Should Insist on Protections for Civil Society
23 December 2011

(Bangkok) – Donors, who provide approximately half of Cambodia’s national budget, should make clear to the Cambodian government that the fourth draft of the Law on Associations and NGOs (LANGO) must be revised to protect civil society or be withdrawn, a group of concerned international human rights organizations said today. Any revisions should involve meaningful consultation with civil society organizations and aim to support their activities instead of creating a legal framework allowing for arbitrary closure of organizations or the denial of registration.

The Cambodian government is pressing forward with a draft law that grants it broad authority to make arbitrary decisions about which groups can operate and which cannot. Civil society delivers essential services and acts as a constructive watchdog over government and private sector activities. This law is hardly the sort of "reform" that will benefit Cambodian citizens. Donors should say no to this farce.

Brad Adams, Asia director

The groups involved are Human Rights Watch, Global Witness, Freedom House, Asian Forum for Human Rights and Development (FORUM-ASIA), Article 19, Southeast AsianPress Alliance (SEAPA), Civil Rights Defenders, Lawyers’Rights Watch Canada, Centrefor Law and Democracy, Protection International, and the Observatory for the Protection of Human Rights Defenders (a joint program of the International Federation for Human Rights - FIDH, and the World Organisation Against Torture - OMCT).

“The Cambodian government is pressing forward with a draft law that grants it broad authority to make arbitrary decisions about which groups can operate and which cannot,” said Brad Adams, Asia director at Human Rights Watch. “Civil society delivers essential services and acts as a constructive watchdog over government and private sector activities. This law is hardly the sort of ‘reform’ that will benefit Cambodian citizens. Donors should say no to this farce.”

The 4th draft of the LANGO contains vague and unspecified terms that will enable the government to target critics by ordering their closure or denying them registration, the groups said. These terms should be clarified, and new and unnecessary barriers to the registration and operations of international NGOs should be eliminated. Furthermore, protections should be established to ensure that if an organization decides not to register, it is not denied legal status and therefore rendered incapacitated. Provisions placing burdensome notification requirements on community-based organizations should be removed.

Governments have a legitimate regulatory interest in providing benefits to organizations that become legal entities and preventing criminal activity. But such regulations cannot be used as a cover to undermine rights to freedom of association, expression and assembly, which are protected under the Cambodian constitution and international treaties to which Cambodia is a party.

The Cambodian context is critical for understanding the risk to Cambodia’s civil society should the current draft of LANGO pass, the groups said. Cambodian governance is still missing the checks and balances found in functioning democracies that limit arbitrary action by the executive branch of government. Government officials who react most harshly to NGO criticisms frequently are found to have a financial stake in the case at hand. Therefore, to argue that Cambodia should have a specific law on NGOs simply because other countries have one ignores the Cambodian government’s increasing actions to constrict public space for pluralistic debate and peaceful expression of views.

The fourth draft of LANGO fails to establish clear provisions to justify denial of registration to associations or NGOs. It violates Cambodia’s obligations under international law, such as under article 22 of the International Covenant on Civil and Political Rights, to which Cambodia is party. LANGO also fails to include clear and objective standards in articles 28 and 29 concerning suspension or termination of registration. Article 28 provides that domestic organizations can be “dissolved by court decisions” but no further details are given, leaving matters to the discretion of a judiciary where political interference is common.

There are no provisions for appealing a suspension or termination and the law lacks procedural safeguards such as advance notice of regulatory action, opportunities to resolve problems prior to termination or suspension, or limiting termination to a sanction of last resort. Such provisions are extremely worrisome given the political and governance context of Cambodia, which is characterized by endemic corruption, arbitrary application of punitive legislation, and an absence of judicial independence, the groups said. The Ministry of Interior’s suspension in August of the NGO Sahmakum Teang Tnaut (STT) is a harbinger of the sudden, unilateral, and non-transparent actions this law will legitimize. The government has still failed to adequately indicate the legal basis for STT’s suspension.

“Many officials in the Cambodian government have never accepted that civil society should operate independently or criticize their decisions,” said Sue Gunawardena-Vaughn, the director of Southeast Asia Program at Freedom House. “A major success of the UNTAC peacekeeping mission 20 years ago was to create this space for civil society. Now it is up to donors to protect it and ensure NGOs can continue to independently provide their essential services to Cambodians.”

Despite promises by the Cambodian government to eliminate mandatory registration, the fourth draft makes legal status dependent on registration, and thus essentially maintains the requirement. The fourth draft represents a bait-and-switch by removing the mandatory clause but then requiring an organization to register if it wants to obtain legal status. Without legal status, it is unclear under the draft law whether an association or NGO will be able to operate in Cambodia since that status is required to enter into legal contracts, open bank accounts, hire staff, import materials, and collaborate with partners “for implementing aid projects according to the existing laws.”

This arrangement effectively undermines respect for the right to freedom of association and cynically presents local associations and NGOs with the choice of either registering or facing constant bureaucratic roadblocks in their work. Although community-based organizations will no longer have to register, under article 5 of the draft law, they will be required to provide prior written notice to local authorities who could be easily used to restrict their work.

The groups also expressed serious concerns that this fourth draft specifically targets international NGOs (INGOs) and would severely hamper both their projects and their advocacy efforts to promote good governance and development approaches that respect human rights. Article 17 of the draft law sets out an overly broad and vague standard that will allow the Ministry of Foreign Affairs and International Cooperation (MoFAIC) to use wide discretion in dealing with INGOs, including terminating a group’s registration if the ministry decides that the INGO has conducted activities that “jeopardize peace, stability and public order…or harm the national security, national unity, culture, customs and traditions of the Cambodian national society.” Moreover, the Memoranda of Understanding that INGOs would have to negotiate with ministry is valid for only three years, resulting in a de facto re-registration process. INGOs also will have no right to appeal any termination of their registration.

“This latest version of the law can be arbitrarily misused to root out international NGOs who employ rights-based development approaches and offer constructive but critical opinions and critiques of the government’s policies and practices,” said Yap Swee Seng, Executive Director of the Asian Forum for Human Rights and Development (FORUM-ASIA).

Finally, passage of this law is not necessary in light of existing Cambodian legislation addressing legitimate regulatory concerns: NGOs can obtain legal status through the newly effective Civil Code. Civil Code sections 46-118 provide details on registration and dissolution of non-profit legal entities, the right to appeal government decisions, and far less burdensome registration requirements. The Penal Code and Anti-Corruption Law address fraud; meanwhile, INGOs already obtain legal standing through Memoranda of Understanding with the government.

“Cambodia’s donors should press the Ministry of Interior to extend the consultation period on the fourthdraft of LANGO so that all viewpoints and voices are heard,” said FIDH President Souhayr Belhassen and OMCT Secretary General Gerald Staberock.

Simon Taylor, Director of Global Witness, concluded “At stake now is the last 17 years of development assistance in Cambodia and the extent to which the donors will be remembered for failing to prevent the removal of one of the few instruments of accountability in Cambodia, nurtured to a great extent thanks to their investments.”

Cambodian draft law on NGOs may breach international pact, UN rights expert warns

 UN  News Centre
14 October 2011


14 October 2011 – A Cambodian draft law making registration of associations and non-governmental organizations (NGOs) mandatory and banning unregistered groups, risks breaching an international treaty, a United Nations rights expert warned today, calling on the Government to review it.

“The current draft NGO law contains a set of problematic provisions, raising concerns over a potential negative impact on Cambodian citizens’ democratic participation in furthering the development of their country,” UN Special Rapporteur on the rights to freedom of peaceful assembly and of association Maina Kiai said in a news release, noting that it could violate the International Covenant on Civil and Political Rights (ICCPR).

A legal framework to ensure freedom of association should facilitate, rather than control, individuals’ enjoyment of this right formally or informally

The mandatory nature of the draft law “constitutes a clear infringement of the right to freedom of association. Having a recognized legal status may confer rights and benefits to organizations such as the ability to open bank accounts, but legal status is not necessary for the enjoyment of the right to freedom of association,” he added.

He welcomed a recent statement by Cambodia’s ambassador to the Geneva-based UN Human Rights Council promising “further consultations” and called on the authorities to review the draft law in open and meaningful discussions with associations and NGOs.

By excluding refugees, stateless persons and other non-Cambodian residents from forming associations or domestic NGOs and limiting eligible founding members to Cambodian nationals, the draft further violates freedom of association, which should be enjoyed by all individuals within Cambodia’s territory, he noted.
Other concerns include the high minimum membership requirement; lack of clarity of the criteria for registration, suspension or termination; and the overly cumbersome and bureaucratic registration process for foreign NGOs, which could limit the scope of their activities and hamper their independence.
“A legal framework to ensure freedom of association should facilitate, rather than control, individuals’ enjoyment of this right formally or informally,” Mr. Kiai said. “It should also emerge from an open, transparent process that engenders goodwill and confidence.”

Two other UN experts raised concerns over the effects of the draft law on human rights defenders. The Special Rapporteur on the right to freedom of opinion and expression, Frank La Rue, stressed that the draft could affect the defenders’ ability to exercise such rights.

The Special Rapporteur on the situation of human rights defenders Margaret Sekaggya said the free and full exercise of the right to freedom of association places a duty on States to create a favourable environment for defenders to act freely.

“We urge the Cambodian authorities to fully take on board the legitimate concerns repeatedly raised by NGOs and associations during the announced further consultations,” the two said, noting that the Government has reviewed and revised the draft law numerous times.

Last month, the Special Rapporteur on the situation of human rights in Cambodia, Surya P. Subedi, urged the Government to review the draft and not proceed with it in its present form.

Third draft of Cambodia's associations and NGO law overlooks key concerns

The Guardian

New legislation threatens to hinder the delivery of development aid to Cambodia by curtailing fundamental rights.

A Mith Samlanh education centre run by NGO Friends-International. A law requiring NGOs to register threatens such projects. Photograph: Paula Bronstein/Getty Images
Civil society groups in Cambodia finally received a glimpse of the third draft of the law on associations and non-governmental organisations (NGO law) on 29 July.

Cambodia's citizens had previously only been able to speculate on what the draft law might contain, and how it might ultimately be enforced. The international community and civil society in Cambodia have criticised previous versions of the law as having a restrictive effect on civil society, effectively weakening citizen accountability for poverty-focused efforts.

Co-operation between the Cambodian government and civil society has long been central to the country's evolution from a war-torn country to a peaceful, vibrant, developing one. While government and civil society organisations have often had different opinions, they have held constructive discussions and co-operated.

However, the latest draft of the NGO law puts this relationship at risk by severely restricting freedom of expression and potentially reducing the voice of many organisations that represent and protect the marginalised: farmers, labour unionists, land activists, students, sex workers, and the disabled.

From the perspective of civil society, the third draft of the NGO law has not changed significantly from the second and first draft. The NGO law still fails to respect fundamental rights, including freedom of association and freedom of expression. In its present form, the draft law will have a severe, negative impact on domestic NGOs and associations as well as foreign NGOs, and will dramatically hinder the delivery of development aid to Cambodia. The result: valuable public services will be curtailed, development at the community level will be stunted, and poverty and corruption will increase. Moreover, the draft law will affect government programs. Major concerns about the current draft include:

• Registration is mandatory and complex, rather than voluntary and simple.

• No safeguards to ensure that denials of registration or involuntary dissolutions are imposed objectively.

• The law does not include a period for an appeal process when a request for registration is denied.

• Key terms in the law are undefined, and many sections are vague.

Ambiguity as well as the complex registration process and reporting requirements will add to the burden of government agencies responsible for administering new regulations, especially the ministry of the interior and the ministry of foreign affairs and international co-operation.

Civil society groups understand the government's need for a legal framework to ensure the stability and security of the country, and to facilitate the effective delivery of development and humanitarian aid. However, such a framework also needs to give citizens the freedom to engage in law-abiding activities without undue restrictions or burdens. To improve the law, the government should:

• Eliminate mandatory registration except for domestic NGOs and associations that wish to take advantage of the benefits of registration.

• Allow the NGO and association registration process to "be truly accessible, with clear, speedy, apolitical, and corruption-free procedures".

• Clearly outline a transparent process for the evaluation of registration applications. Any government decision to deny registration should be in writing and take effect over a reasonable and manageable time frame. The appeal process should be explicit and quick. It should also coincide clearly with objective legal standards for the purposes of review.

• Exclude or simplify reporting procedures for small, provincial, community-based development organisations and alliances in articles 44, 46 and 48.

• Incorporate a glossary explanatory notes for every article in the draft.

Cambodia's past development success - social and economic - would never have happened if the opportunities to freely organise and express opinions had been curtailed. It is, therefore, not only in the best interest of Cambodia's citizens but also to the advantage of the national government to make registration optional for domestic NGOs and associations, to make it simple and to define terms. Successful development of societies worldwide goes hand in hand with increased openness.

• Borithy Lun is the executive director of the Co-operation Committee for Cambodia.

‘The Law Is the Law’: Lao Monghay

Sok Khemara, VOA Khmer | Washington, DC
 6 Sept 11

Lao Monghay, who has spent years watching Cambodian politics and was a researcher at the Asian Human Rights Commission, told “Hello VOA” that law teaches “proper procedure,” but it is not yet respected in Cambodia.
“The culture of obedience to law means that you apply the law if someone commits a wrongdoing.”

Cambodia still lacks a culture of legal compliance, a fact that is exacerbated by the impunity enjoyed by top government officials and others, a veteran political analyst said Thursday.

Lao Monghay, who has spent years watching Cambodian politics and was a researcher at the Asian Human Rights Commission, told “Hello VOA” that law teaches “proper procedure,” but it is not yet respected in Cambodia.

“The culture of obedience to law means that you apply the law if someone commits a wrongdoing,” he said. “There must be punishment and convictions as stipulated.”

The evidence that many Cambodians ignore the law can be found all around, he said, starting with the breaking of traffic regulations and leading all the way up to the weakness of the National Assembly in passing laws.

Punishment under the law is not fairly handed down by the courts, and high-ranking officials often escape punishment altogether, he said.

Lao Monghay compared the current state of Cambodian law to a spider web that only catches the smallest insects, instead of upholding the constitutional principal that all are equal under the law.

No powerful officials or businessmen should see political intervention around it, he said. “The law is the law.”

Strong laws enforce peace and prosperity, he said.

“For example, the traffic law,” he said. “We all agree to use the right hand side of the road to drive, but if one goes left and one goes right, it’s chaos, and we don’t have peace, stability or order.”

Government spokesman Phay Siphan said the Cambodian government is developing each law and looking at ways to better apply them. “We are optimistic we will reach the right direction together,” he said.

However, Lao Monghay said the laws need reviewed by parliamentary or special committees, which can look into whether they are functioning properly or achieving their aims. He cited the immigration law as an example. “How is it being applied?” he said. “How many foreigners live in Cambodia? What about naturalization?”

Committee oversight on laws could then be published and debated. The executive arm of the government, controlled by the prime minister, should be beholden to the legislative side, that of the National Assembly and the Senate, he said.

Laws on the books should be archived and well known, he added. High-ranking officials should then follow those laws and set an example for the people.

“Most importantly, in public places, especially along the roadways, all leaders who have vehicles with license plates belonging to the police, military, government or National Assembly, and so on, they should respect the traffic laws together,” he said. “That is a good model for the people to follow.”

  
  

Ministers react to UN criticism of NGO Law

The Phnom Penh Post
Friday, 30 September 2011 12:01 Bridget Di Certo

Government officials yesterday said criticisms of the draft NGO law made by United Nations Special Rapporteur Surya Subedi on Wednesday were out of date as significant modifications are being discussed for the “fourth generation” of the legislation. During a session at the Human Rights Council in Geneva on Wednesday, UN Special Rapporteur Surya Subedi flatly informed the Human Rights Council that the Cambodian Government should scrap the current version of the controversial draft law.

“The government should not to proceed with the draft NGO law in its present form,” he said.

Council of Ministers spokesman Phay Siphan said yesterday the criticisms were ill-directed as there was a fourth generation of the law that heeded advice from international organisations.

“International organisations have given a lot of advice, consultation with ministers has given a lot of modifications and the draft is now in the fourth generation,” he said.

The draft law has drawn strong criticism from NGOs in Cambodia and abroad that have slammed the legislation’s burdensome registration requirements and provisions they say allow the government to arbitrarily shut down organisations that fall foul of it.

They have also attacked the process of drafting the law, claiming the government has effectively shut them out from have any meaningful input on the legislation.

Donor governments asked to review Cambodia aid if NGO law is passed Human rights groups call on UK, US and Australia to apply pressure on Cambodia if severely restrictive draft law is adopted

Mark Tran
guardian.co.uk, Friday 26 August 2011 14.19 BST

Cambodia's PM Hun Sen is under fire from human rights groups over a proposed law requiring NGOs and associations to register. Photograph: Rolex Dela Pena/EPA
Human rights organisations are calling on donor governments to reassess their aid programmes to Cambodia if the country passes a law that can be used to muzzle local and foreign NGOs.

Ten groups have written to William Hague, the foreign secretary, Hillary Clinton, the US secretary of state, and Australia's foreign minister Kevin Rudd, sounding the alarm on a draft law now before Cambodia's council of ministers.

Human Rights Watch (HRW), Global Witness and others say the draft law, if passed in its present form, threatens to severely restrict civil society's right to freedom of association and expression.

"As such, the law will limit the ability of Cambodia's development partners to ensure that programmes reach their intended grass-roots beneficiaries," the letter says.

The letter urges the foreign ministers to make it clear to the Cambodian government that, if the proposed changes are adopted, they will reassess their aid programmes and urge multilateral aid agencies to review their assistance.

The key concern for human rights groups is a provision under the law which states that associations and organisations cannot operate in Cambodia unless complex registration applications have been formally approved by the government.

"The draft law will effectively authorise arbitrary decision-making by officials as it fails to adequately define terms or set clear guidelines, and it creates burdensome and expensive registration and reporting processes that will particularly disadvantage grassroots citizens' associations and groups," the letter says.

Phil Robertson, deputy director of HRW's Asia division, said the Hun Sen government was seeking to stifle the one clear source of opposition to the government, having reduced the opposition to rump status and cowed the international community.

"Hun Sen is growing increasingly sensitive to critical NGO voices which are working with local people facing dispossession of their land for commercial use for cash crops such as sugar cane," said Robertson. "There has been a plague of land seizures and it is an issue that goes to corrupt governance."

An estimated 30,000 people are driven from farmland or urban areas every year to make way for property developments or mining and agricultural projects.

The World Bank earlier this month suspended new lending to Cambodia in a dispute over the eviction of thousands of poor landowners to make way for a property development in the capital, Phnom Penh.

Two thousand people have been evicted already and another 10,000 face eviction to make way for the project in the Boeung Kak lake area. The development is led by China's Inner Mongolia Erdos Hongjun Investment Corp, an unlisted firm that has pledged to spend $3bn in Cambodia on property, metal processing and power generation, and which has close ties to Hun Sen. Robertson said the Cambodian government has since agreed to put back on the table an onsite resettlement plan, which showed that international pressure can work.

"The lesson is when push comes to shove, when development partners threaten to take action, that kind of thing makes the Cambodian government sit up and take notice," he said.

The Cambodian government recently suspended a local NGO, the Sahmakum Teang Tnaut, which has been working with communities affected by major projects in Phnom Penh, including the Asian Development Bank/USAid-funded railway rehabilitation project, and the Boeung Kak lake development.

The suspension, say human rights groups, shows how the Cambodian government may use the draft associations and NGO law if it is passed.

In other recent moves against critics, the government earlier this month closed down two newspapers reproachful of the Cambodian ruling party – the Water & Fire News, and the World News. Their publishing licences were revoked because of "a perceived insult to the ministry of information".

Five men have also been convicted of "provocation" for distributing pamphlets critical of the state. They revealed the Cambodian government's ties to the Vietnamese government and accused Hun Sen of selling land to foreign countries, calling him a "traitor" and a "puppet of Vietnam".

One of Asia's poorest countries, Cambodia receives between $50m and $70m a year from the World Bank. It is looking increasingly to China for aid and development. China is Cambodia's biggest source of foreign direct investment, with stated plans to spend $8bn on 360 different projects during the first seven months of 2011.

Cambodia Did Good and Avoided Harm

By Pheng Heng*
20 August 2011
 
​Based on his Theory of Justice, Jeremy Bentham raised three main points namely justice based upon happiness; all judgments of action should produce a great benefit for a great number of the people; and do good avoid harm.
 
​In this theory, I want to mention some management of events in Cambodia in 1993. Particularly I focus on election run by the United Nation Transitional Authority in Cambodia, UNTAC and the formation of Royal Government of Cambodia in 1993.
 
​I want to show the theory and the real practice, even it’s hard to understand about theory of Justice of Jeremy Bentham because it’s far from the ideas of the old saying which says that it can’t take both “Rabbit is running back into the forest while if they’re catching snake fish”. But Jeremy Bentham wants to get justice, great benefits for a great amount of the people and avoid harm. His theory referred to finding happiness for a great amount of the people in society. He wants to help the majority but he also wants to avoid harm.
 
​This theory seems difficult to support the Legal Justice. Because Justice is referred to law or rule that everyone has to respect and equals before the law. Otherwise in democratic principles, the majority is the winner. This principle shows that if we help produce a great benefit for a great number of the people, how can we do well and avoid harm for the minority?
 
​In 1993 the management for Cambodia revealed that election system and the formation of Royal Government of Cambodia was the two-third majority in national assembly decision. I will discuss these points as follows:
 
1- Election system:

UNTAC used proportional system by political party list for the candidates in provincial-capital constituency for the election and the formula of calculating parliament seats is the majority rest of the valid ballots. According to this system, the initial seat allocation gives to each party the whole number of seats its proportion of the vote would justify. If there are additional seats to be filled, the party whose fractional remainder is the largest receives the first unassigned seat in the constituency. The party with the next largest fractional remainder receives the second unassigned seat, and so forth. The greatest remainder system allocates seats in a way that favor small parties. This showed that the winners in National Assembly are majority and minority representatives. This formula made the minority have its voice in the National Assembly and the minority was also happy. So in the society, there was no harm and there was Cambodian national reconciliation in 1993. This formula allowed all parties to have their representatives in the National Assembly and they were happy with this solution. Concerning this solution, we can say that Cambodia produced a great benefit for a great amount of the people.
 
2- Formation of  Royal Government of Cambodia:

After counting ballots of the 1993 election, Cambodian People Party, CPP denied the result of the election and then moved their forces to occupy some provinces in the east of the Mekong River. With this situation, other political movement, Khmer Rouge was occupying some areas in the west of the Mekong River too. In this event the King father, Norodom Sihanouk, was the leader who did not want Cambodia to fall into a civil war again, he proposed the winner, Funcinpec1 Party to share its power with CPP. Then CPP accepted the proposal to share power in royal government of Cambodia that led by Co-Prime Minister, 1st Prime Minister and 2nd Prime Minister in 1993 and all the winners were in national assembly and worked in the royal government together. We can say that this solution shows that “Cambodia does well and avoids harm”.
 
3- Two-third majority in national assembly decision:

Two-third majority in national assembly decided to adopt Cambodian constitution in 1993. The Constitution is very important for Cambodian national reconciliation. It does not mean two-third majority puts barrier for creating the new government or some other important bodies. The proportional system and formula of two-third majority in the national assembly are very important for the developing countries. It can strengthen the unique nation, democracy with respecting the minor. A two-third majority requirement could protect the interests of minorities and unique nation.
 
This is the kind of Justice for Cambodian leaders 1993.
 
*Mr. Pheng Heng is a LLD Student, PUC.  He can be reached at phenghenglaw@yahoo.com  
 UN Peacekeeping in Cambodia: Untac's Civil Mandate (International Peace Academy Occasional Papers)

International Conference on University Capacity Building in Academic Research

By Chea Sophal
26 August 2011

Phnom Penh:  Royal University of Law and Economics (RULE) and Konrad Adenauer Stiftung organized a one-day workshop on University Capacity Building in Academic Research at InterContinental Hotel.  The main topics include Education Quality Assurance and Academic Research Policy, Rule and Research Activities, Quality of Research Paper and Academic Ethics, Ph.D Program (Opportunities and Challenges).

H.E. Ngoy Yuok, Rector of RULE expressed the minimum standards of educational quality by looking at the Mission, Management and Master Plan Infrastructure, Curriculum, Staff, Students and Services, Educational Services, Physical Material Location, Budget Management, and Information Dissemination.

The curriculum would be taken into the consideration on the grounds of developing curriculum committee with clear role and responsibility, content of curriculum, curriculum organization, process of credit studies and credit transfer, teaching and learning efficiency, student evaluation, research, system ensuring internal education quality, system of managing and maintaining students' work, and revision of curriculum.

H.E. Ngoy pointed out that main factor for educational quality also involves in students and services such as school entrance requirements, requirements for issuing degrees including public announcement, school feed determination, scholarship provision process, service provision for students, and service provision for the community.  Cambodia still has limited facilities in providing the above-mentioned factors.

The 2011-2015 Master Plan for Research Development in the Education Sector reveals major objectives to enhance the quality of education in Cambodia, increase new knowledge and develop the society, economy and the culture by:
- ensuring that a wide range of research is conducted;
- improving the capacity of researchers and higher education institutions;
-  promoting resect for research ethics;
- encouraging wide dissemination of research results; and
- promoting research that leads to the development of new knowledge and inventions.

H.E. Dr. Neth Barom explained the Cambodia's higher education overview to the participants on several points such as enhancing quality of higher education to meet the labour market demands through providing budget for institutional operation and research activities to HEIs (ESSP, 2005, p15), research is still in a dark stage for Cambodian higher education (Chet, 2009, p161), University research has not received any significant or concrete emphasis in Cambodian national policy (Kwok, 2010, p29), and there have been a need for research policy, national and sub-national, as the guidelines and decisions expressed in directives, regulations, or laws with regard to funding and regulation of research activities.

The challenges and issues faced by Cambodia includes lack of research capacity, academic professionalism, research facilities, budget for university research, and administrative management.  

Theory of Justice: “John Rawls’s theory of justice”

By Sang-Bonn Soth*

August 23, 2011, Phnom Penh

We have recently discussed in class about theories of justice by philosophers namely Aristotle, Bentham, Norick, Immanuet Khant and John Rawls. Each theory has its advantages and disadvantages. However, I am in favor of John Rawls’s theory of justice for the following reasons:

1.     According to John Rawls’s theory of justice, it is a form of fairness.  John Rawls used the term social contract with his argument to show that justice particularly the distributive justice is a form of fairness.  From the outset, we can distinguish between law and justice. Law is the legal rule that applies in a certain area at a certain period of time. The question regarding to the law can be best answered by lawyers, whereas Justice is the question of fairness. This question cannot be answered by lawyers. It is a question of philosophy. Mostly:          Just / fair = good, Unjust / unfair = bad and in conclusion, Law has to be just = good.

2.      In order to obtain justice John Rawls required the respect of basic rights of individuals shall absolutely be protected. The legal rights are not subject of abuses, but instead, it is to be promoted by a catalog of basic rights and guaranteed by the Constitution as a supreme law of the nation. Rawls also required individuals to enjoy equal opportunities.

3.     Rawls viewed that in order to make fair contract unless the parties don’t know the backgrounds. Likewise, a fair decision can be made if the judge sticks to the core value of moral and don’t know the background of the parties to the dispute.

Example:

Recently, there was a case of violence in Oudong District of Kompong Speu Province.  Hundreds of armed police and villagers clashed over a land dispute. At least 10 people were injured on both sides, including seven seriously. The armed forces mobilized to protect private interests, at the expense of the public interest.

The clash caused casualties and the casualties were the result of the enforcement of the court order made by the Supreme Court. The decision of the court made with less clear investigation and was not based on the core value of moral and respect of basic rights as required by John Rawls, thus, unfairness occurred and violence erupted.    

Disclaimer:  The view points from the articles posted in this academic forum do not reflect the opinions or ideas provided by the Nokor Khmer.  They are genuinely the opinions of the article author.

* Sang-Bonn Soth is an LL.D Student at PUC, he can be reached at sangbonn@yahoo.com

       

How Is John Rawls’s Theory of Justice Reflected and Applied in Cambodia?

By Yin Sarom*

22 August 2011

Since it appeared in 1971, John Rawls's A Theory of Justice has become a classic and it has especially shared with American conservatives one fundamental principle: the inviolability of the individual. A "Theory of Justice" is a technical work aimed at professional philosophers, political scientists, and constitutional law specialists. Rawls aims to express an essential part of the common core of the democratic tradition--justice as fairness--and to provide an alternative to utilitarianism, which had dominated the Anglo-Saxon tradition of political thought since the nineteenth century. Rawls substitutes the ideal of the social contract as a more satisfactory account of the basic rights and liberties of citizens as free and equal persons. Advancing the ideas of Rousseau, Kant, Emerson, and Lincoln, Rawls's theory is as powerful today as it was when first published[1]. 

A Theory of Justice is known as "justice as fairness"[2] of John Rawls comprises two main principles of liberty and equality. First, Rawls believes that each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. That means the basic liberties of citizens are, roughly speaking, political liberty (i.e., to vote and run for office), freedom of speech and assembly, liberty of conscience, freedom of personal property; and freedom from arbitrary arrest. As basic liberties, they are inalienable: no government can amend, infringe or remove them from individuals—legal rights. Second, Rawls states that the equality is the component of justice as fairness establishing distributive justice. Rawls presents that "social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity."  This principle maintains that "offices and positions" should be open to any individual, regardless of his or her social background, ethnicity or sex. It is stronger than formal equality of opportunity' in that Rawls argues that an individual should not only have the right to opportunities, but should have an effective equal chance as another of similar natural ability. And inequalities are permitted only if it works to the benefits of the least advantaged members of society. [3]

Reflecting the above John Rawls's A Theory of Justice to Cambodia’s existing supreme law, it’s clear that liberty or basic rights and obligations, and equality are guaranteed.[4] Principles of educational freedom and equality to ensure that all citizens have equal opportunity to earn a living, receive equal pay for equal work, the right to vote and to stand as candidates for the election are fundamentally safeguarded. [5] Among other, key international human rights law to which Cambodia is a party, namely: the International Covenant on Civil and Political Rights (ICCRP) was partly influenced by John Rawls’s theory of justice. Hence given the contents enshrined in Articles 31, 36, 44, 66 and 76 of the Cambodian Constitution, it is correct to conclude that John Rawls’s theory of justice is clearly expressed in Cambodia’s supreme law. Although, the provisions to some extents are considered as narrowing, broadening and inconsistent to scope and meaning expressed in international law, ICCPR.[6]     

Since democratization process incepted in 1993, Cambodia has relatively enjoyed peace, political stability and economic development, and reintegrated to regional and international communities. As provided by law, Cambodian citizens have also enjoyed both their civil and political rights. However with notable progress made, challenges are also being faced especially concerning the political rights and property rights. Some of these challenges are contrary to the Cambodian constitution and John Rawls's A Theory of Justice. For instance, according to the recent findings of a study into land conflicts, 223 land conflicts have been reported on in Cambodia since 2007. These cases affect at least 5% of Cambodia’s total land area of 181,035 square Kilometers, and Phnom Penh has the highest number of land conflicts.[7] At the same time, the violations of citizen’s rights resulting from land conflicts were widely reported as well. Excessive armed police clashed with villagers in Kampong Speu in June 2001 which ten people were seriously injured. Whereas peaceful Beoung Kak lake protesters were beaten and arrested by armed anti-riot police and military police officers in Phnom Penh.[8] These few cases mentioned, if not properly solved, can potentially cause social injustice which might lead to anger, greed and disharmony. The right to confiscate properties from any person shall be exercised only in the public interest as provided for under the law and shall require fair and just compensation in advance.[9]

When liberty or basic rights and equal opportunity are respected and recognized as legal rights and guaranteed by the supreme law—Constitution, therefore they are absolutely protected and cannot be subject to abuses. As mentioned early, American individual liberties and democracy were influenced by John Rawls's A Theory of Justice and Cambodia has optimism as it has fundamentally embodied this powerful legal theory into its supreme law. For decades, Cambodian citizens have pursued justice and fairness to be prevailed in their society but the full realization remains to be seen as the application process for this young democracy faces challenges along the way. 

*YIN Sarom is an LL.D Student at PUC, he can be reached at yinsarom@gmail.com

Disclaimer:  The view points from the articles posted in this academic forum do not reflect the the opinions or ideas provided by the Nokor Khmer.  They are genuinely the opinions of the article author.  

Reference

1.      John Rawls, A Theory of Justice: Revised Edition (Belknap), 1999

2.      Phillip Schuchman, Readings in Jurisprudence and Legal Philosophy, 1979

3.      Cambodian Yearbook of Comparative Legal Studies, Volume 1, 2010

4.      Cambodian Center for Human Rights, www.sithi.org

5.      Press Releases, Cambodian League for the Promotion and Defense of Human Rights (LICADHO), www.licadho.org

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[1] John Rawls, A Theory of Justice: Revised Edition (Belknap), 1999, Abstract

[2] Phillip Schuchman, Readings in Jurisprudence and Legal Philosophy, 1979, p.1004

[3] Ibid. 1979, p.1007

[4] The Constitution of the Kingdom of Cambodia, Article 31

[5] Ibid. Article 34, 36, 66, 76

[6] Cambodian Yearbook of Comparative Legal Studies, Volume 1, 2010, p. 134

[7] Cambodian Center for Human Rights, www.sithi.org

[8] Press Releases, Cambodian League for the Promotion and Defense of Human Rights (LICADHO), www.licadho.org

[9] The Constitution of the Kingdom of Cambodia, Article 44

           

Cambodia: Do Politicians Act for the Greater Good of the Greatest Number of People?

By Phann Vanrath*

16 August 2011

 Jeremy Bentham began an introduction to the Principles of Morals and Legislation in his Theory of Justice by defining human nature as something fundamentally driven by pleasure or pain principle.  In short, justice is based on happiness. According to Bentham, a good politician or judge would be one who introduced laws based on what would be the advantage of most people. In other words, they act for the greater good of the greatest number of people.

Therefore, are Cambodian politicians acting for the greater good of the greatest number of people? Taking an example of the two cases number 003 and 004[1] at the Extraordinary Chambers in the Court of Cambodia (ECCC)[2], the Prime Minister of the Kingdom of Cambodia expressed publicly that Cambodia do not want to have a civil war or conflict again after the integration of Khmer Rouge, so the two cases which are now in the process of ECCC are enough for the better benefit of Cambodia. As the result, the Cambodian National Co-Prosecutor decided to file the two cases number 003 and 004 without proceeding. This illustrates that the Cambodian politicians apply Bentham’s Theory of Justice or the Principle of Utility.

John Stuart Mill supports the theory of Bentham. Mill naturally favored the “higher” pleasures over the lower ones. Mill considers the principle of utility to be as close to an objective moral trust as we can get. Although he accepts that being covered by feelings of pleasure or pain is rather subjective, he challenges us to show how it is not a principle which governs all human behavior. People do all kinds of things because they believe it will make them happy, even if they do them out of a sense of duty. Our basic instinct is to avoid pain, and in doing so we naturally seek pleasure.[3] Considering the above example, it seems to be subjective that the facts of not bringing the other former Khmer Rouge leaders to justice (ECCC) will seek pleasure to a number of Cambodian people as a whole.

In conclusion, Bentham’s Theory is in general good if the politicians or rulers in a country use it in a right way for the great benefit for a great amount of people and avoid harm, but there are also consequences in applying this theory as we forget the minority’s rights. This is why, Mill also wants the basic rights of people must be protected as well. In this case, the rights of victims from Khmer Rouge regime need to bring all former Khmer Rouge leaders to justice and these rights should be considered carefully and objectively. However, as rulers in a country have to balance the pleasure and pain and seek pleasure for its own people as a whole.

* Phann Vanrath is an LLD student at PUC; he can be reached at phann.vanrath@gmail.com    

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[1]  The International Federation for Human Rights points out that on 29 April 2011, the two Co-Investigating Judges announced that their investigation in Case 003 was concluded. Although not named by the ECCC, the identities of the two former officials suspected in Case 003 have been widely reported as being Khmer Rouge air force commander Sou Met and navy commander Meas Muth. While Case 004, involving three individuals, is currently open, it faces a similar premature end. Senior Cambodian government officials, including the Prime Minister, have publicly and repeatedly opposed pursuing Cases 003 and 004, claiming that prosecution of these cases would lead to civil unrest (available at http://www.fidh.org/ECCC-Call-for-transparency-and).

[2] The Extraordinary Chambers in the Courts of Cambodia, commonly known as the “Khmer Rouge Tribunal”, is a national court established pursuant to an agreement between the Royal Government of Cambodia and the United Nations to try senior members of the Khmer Rouge for serious violations of Cambodian criminal law, international humanitarian law and custom, and violation of international conventions recognized by Cambodia, committed during the period between 17 April 1975 and 6 January 1979. This includes crimes against humanity, war crimes and genocide.

[3] Mill J. S., Utilitarianism (1806-73)

Disclaimer:  The view points from the articles posted in this academic forum do not reflect the the opinions or ideas provided by the Nokor Khmer.  They are genuinely the opinions of the article author.  

     
The Khmer Rouge Tribunal
Getting Away with Genocide?: Elusive Justice and the Khmer Rouge Tribunal
Global Justice or Global Revenge?: International Criminal Justice at the Crossroads
At last, a tribunal for Khmer Rouge atrocities.(Letter from Cambodia): An article from: American Scholar