As Cambodia’s Executive sends the NGO Law to National Assembly, will the two main political parties ensure that the law undergoes a meaningful consultation with citizens?
Omar Ortez is the Senior Policy Advisor on Actiive Citizenship at Oxfam US. You can follow him on Twitter @omarortez1.
A free and vibrant civil society is central to inclusive development, yet there is growing concern about a shrinking civic space worldwide. Last week, said this about the problem: “An alarming number of Governments have enacted laws limiting the ability of non-governmental organizations to operate, receive funding from outside, or both. Some Governments have twisted the term “civil society” to make it code for foreign conspiracies and subversion. …the pressure is all too real. We see military crackdowns on demonstrations, arbitrary arrests and harsh prison sentences for exercising basic freedoms. Human rights defenders – especially women – face violent attacks, smear campaigns and crippling fines. All too often, sweeping definitions of terrorism are used to criminalize otherwise legitimate activities, disproportionately targeting minorities, opposition groups or civil society organizations.”
In the same week, the Cambodian government approved the controversial Law on Associations and NGOs (LANGO). The law is expected to be sent to the National Assembly at any moment, where the ruling Cambodian People’s Party (CPP) holds the majority vote; this could lead to LANGO being rubberstamped without further debate, or consultation.
Rushed approvals of legislation that erodes citizens’ freedom are not uncommon in Cambodia. Last year, , which give the executive a free hand to interfere in the judiciary, virtually flew through parliamentarian approval –preventing an independent judiciary from responding to citizens’ legal recourse on critical issues such as . Furthermore, recent ), also approved without consultation, now include backward provisions on free speech and assembly- such as one that prohibits any “public criticism” of politicians by civil society during elections, subjecting them to steep sanctions if they do. With this background in mind, it is important to reflect on what meaningful consultation really is, and how to understand in the context of Cambodia.
Meaningful consultation starts with the recognition that citizens have theright to engage, to be informed by, and to do influencing work oninstitutional power bearers (both inside and outside of government) as they shape laws, policies and public resources that affect citizens’ lives. At the same time, power bearers must recognize that since their privileged position gives them more control over final impacts, they also have the responsibility to create consistent and continual dialogue with citizens about those potential impacts. Real consultation requires:
1. Meaningful engagement between citizens and decision makers.
Meaningful engagement only happens if: (a) relevant government decision-makers sit down with leaders representing the full spectrum of civil society –not just those preferred by government; (b) the consultation process itself –including a proper timeline that ensures a thorough and trusted process– is jointly designed and agreed between government and civil society –this also implies that stakeholders have the right to not engage if they assess that the process design will not meet minimal conditions needed for success; which is why (c) power asymmetries in citizen-state relations have to be addressed by equipping citizens with the technical, financial and human capacities to fully participate in discussions.
· In bringing government and civil society leaders to the table, it is encouraging to read declarations by , stating, “I think there should be participation from civil society and NGOs so they can give their opinions and so we can listen.” Offering that one of the several parliamentary commissions who review LANGO should host a meeting with civil society before the law is put to a vote.
· However, a clearly laid- out consultation process is still lacking. Oxfam’s partner, Saroeun Soeung, Executive Director of Cooperation Committee for Cambodia (CCC), said that “civil society organizations participating in the #StopandConsult campaign have not yet received any invitation from the government to openly consult on the new LANGO version …what civil society needs is enough time to analyze the current version fully and provide recommendations.”·
· With respect to addressing asymmetries in citizen-state relations, by launching the #StopandConsult campaign, Cambodian civil society has demonstrated resourcefulness in ensuring that citizens’ requests for consultation are being heard by the population at large, by the Cambodian government, and by national and international allies.
2. Discussing about meaningful information.
Real consultation over laws, policies and public resources that affect citizens’ lives can only happen if there is a full exchange of information during their formation stage and before power bearers make any final decisions about them. Differences in values, perspectives and priorities by government, private and civil society actors can be acknowledged but should not undermine the timeliness, consistency and continual exchange that true debate demands.
· Discontinuity of consultation as laws are updated is problematic. The Cambodian government claims that LANGO had already undergone consultation in 2011. Active citizens opposed the 2011 version pointing out concerning articles that would restrict freedom of association, undermine the operational abilities of NGOs, and give the government unaccounted power to dissolve them, among several other issues. Civil society organizations are concerned that no official 2015 version has been made public so citizens can assess how much has changed, or not, since 2011.
· Consistency and continuity of dialogue on laws, policies and public resources requires frequent press briefings by government officials where the press can freely ask questions; regular hearings at the National Assembly; and disposition to join open public debates.
3. Meaningful debate leading to meaningful change.
Change is the litmus test of meaningful consultation. If nothing substantial changes about the content and trajectory of laws, policies and public resources after a consultation process with citizens, it is hard to believe that meaningful consultation actually occurred. Though no process is perfect, commitment by power bearers to improve the consultation process requires monitoring of the various proposals and recommendations that stakeholders bring up for debate –including those brought by civil society that power bearers deem as contentious, or even unacceptable– in order to evaluate and provide feedback to all stakeholders on the reasons why power bearers incorporate, or not incorporate, civil society recommendations.
· Agreeing on what the law really wants to change is the hardest challenge. As the NGO law was approved by the Council of Ministers last week, Prime Minister Hun Sen stated, “NGOs and associations should not worry about this law. It will protect you, support you, and open up to your activities.” However, many Cambodian and international human rights activists (e.g. ), as well as diplomats (including ) agree in pointing out that Cambodia does not even need a targeted Associations and NGOs law to address government concerns about counterterrorism and criminal activity. Rather, those concerns can be addressed with Cambodia’s current laws and civil code. All of which raises doubts about the “true intentions” of the law. The Cambodian government should address these doubts during consultations.
Oxfam’s partner Sopheap Chak, Executive Director of Cambodian Center for Human Rights (CCHR), sums it up well: “Freedoms of expression, association and peaceful assembly, and the right to participate in public affairs, are human rights ensured in the Cambodian Constitution and in international treaties that Cambodia has signed… any new legislation should strengthen the environment civil society needs to do its work without interference… We hope that the National Assembly will soon engage in consultations with all relevant stakeholders in a truly democratic process.”
Certainly, the world is watching Cambodia. Potential investors that care about rule of law and predictable and stable business environments are monitoring the country. The Cambodian diaspora is doing so well. More importantly though, ordinary Cambodians –particularly those over a million and a half young people who will vote in the 2018 elections for the first time– are observing the behavior of both major parties in the National Assembly. So, will there be meaningful consultation this time around?
News Update as of 6/12/2015
A draft copy of the NGO Law leaked earlier this week confirms civil society’s concerns: “Overall, I think it’s much worse than the version we had before,” said Oxfam’s partner Saroeun Soeung, Executive Director of Cooperation Committee for Cambodia (CCC). “On the positive side, he said, it removes one contentious article that would have limited to 25 percent the share of their budgets that foreign NGOs could spend on overheads, a ceiling they have argued could seriously hamper their work” said Mr. Saroeun, the article’s removal was outweighed by other changes, including:
- A provision that would bar anyone from registering as a founding NGO officer if he or she has led an NGO that the government has previously dissolved.
- It would also let the Ministry of Foreign Affairs shut down any foreign NGO working in the country deemed to be jeopardizing the “customs and traditions of the Cambodian national society,” vague language NGOs fear the government could misuse to target its critics.
- Under the old draft, NGOs would have had to register with the government only if they wanted legal standing, but otherwise would apparently have been allowed to keep working. Under the new draft, according to the CCC, NGOs would have to register or shut down.
- Unlike the earlier draft, the latest version insists that all NGOs be politically “neutral,” but does not provide a definition or clear guidelines, adding another term that has the CCC worried. “It’s a very vague term that can very easily be manipulated,” Mr. Saroeun said.
- The new draft also drops any mention of “community-based organizations,” highly localized and relatively informal groups typically formed to tackle the immediate concerns of a particular village or commune. Mr. Saroeun said it was now unclear whether such groups would be excluded from the law or treated like other, larger NGOs—replete with strict registration and reporting duties they may not be able to carry out. Without making it clear that the smallest groups are exempt, he said, “it’s easy for the local authorities to misinterpret”
- It would also require NGOs to hand over to the government the reports demanded of them by their donors, forcing them to divulge information that in some cases should be kept confidential.
- And like the older draft, it still lacks a clear list of reasons the government could use to reject a registration application.
NGOs say the law flies in the face of their constitutional right to freedom of association. Despite a few improvements, Mr. Saroeun said, “this law is still very harmful to society.” Phil Robertson, the deputy director of Human Rights Watch’s Asia division, also agrees, and declared this week that if passed in its current form the law will be “an unmitigated disaster for civil society”. The law would serve as “an axe that Hun Sen and the government will no doubt use to chop off the heads of NGOs and associations active in protecting human rights, exposing official corruption, and demanding accountability for elites’ looting of land and natural resources”.