An ICFO Journey Through Asia Continued

Well, here we are in Phnom Penh, Cambodia

The Cooperation Committee for Cambodia (CCC) sponsored a regional forum on 13-14 December 2011 in Phnom Penh, Cambodia.  The purpose of this forum was to consider the implications of Post High Level Forum 4 in Busan, Korea (29 November to 1 December 2011) on civil society organizations in Southeast Asia.  The basic rationale for the forum was based on the premise that civil society organizations (CSOs) are an essential component of a healthy, progressive society.  According to the concept statement, weak accountability is one of the biggest political challenges facing CSOs, thus collective and serious ownership of accountability principles, and self-regulation are critical tools to augment its legitimacy and effective role as third development actors within their own rights.

The focus of this forum was on Article 22 of the Busan Partnership for Effective Development Co-operation, which provided:

     Civil society organizations (CSOs) play a vital role in enabling people to claim their rights, in promoting rights-based approaches, in shaping development policies and partnerships, and in overseeing their implementation.  They also provide services in areas that are complementary to those provided by the states.  Recognizing this, we will:

a)   Implement fully our respective commitments to enable CSOs to exercise their roles as independent development actors, with a particular focus on an enabling environment, consistent with agreed international rights, that maximises the contributions of CSOs to development.

b)   Encourage CSOs to implement practices that strengthen their accountability and their       contribution to development effectiveness, guided by the Istanbul Principles and the International Framework for CSO Development Effectiveness.

First, a little history and context.  The process that lead to the Fourth High Level Forum on Aid Effectiveness, or Busan HLF-4, began, at least theoretically, with the Rome Declaration on Harmonisation HLF-1 in 2003. This First High Level Forum in Rome, "marked the first occasion at which principles for aid effectiveness were outlined in a concrete declaration" according to the history reported by the UN Organization for Economic Co-operation and Development (OECD).

International development cooperation surged in the early 1960s in the midst of post-war optimism and enthusiasm.  However, success was lacking in aid effectiveness.  A formulation of principles for effective aid was developed and grew out of the need to understand why aid was not producing the development results everyone expected and wanted to see.  The Rome Declaration produced by this High Level Forum 1 in Rome set forth a series of concrete priority action items:

• That development assistance be delivered based on priorities and timing of the countries receiving it.
• That donor efforts concentrate on delegating cooperation and increasing flexibility of staff on country programs and projects.
• That good practices be encouraged and monitored, backed by analytic work to help strengthen the leadership that recipient countries can take in determining their development path.

Ministers, heads of aid agencies, and other senior officials representing 28 aid recipient countries and more than 40 multilateral and bilateral development institutions endorsed the Rome Declaration on Hamonisation.  There was little or no evidence in the document describing this First High Level Forum, or in the Declaration itself, that civil society organizations were involved, or stakeholders in advancing the goals declared in the Rome Declaration.

According to the history of The High Level Fora on Aid Effectiveness published by OECD, The Second High Level Forum in Paris in 2005 marked the first time that donors and recipients both agreed to commitments to hold each other accountable for achieving the goals and priorities announced in the Rome Declaration on Harmonisation.  Therefore, these commitments were laid out in the Paris Declaration on Aid Effectiveness.

Article I, Statement of Resolve, Paris Declaration on Air Effectiveness, provided in pertinent part, as follows:

We, Ministers of developed and developing countries, responsible for promoting development and Heads of multilateral and bilateral development institutions, meeting in Paris on 2 March 2005, resolve to take far-reaching and monitorable actions to reform the ways we deliver and manage aid as we look ahead to the UN five-year review of the Millennium Declaration and the Millennium Development Goals (MDG) later this year.  As in Monterrey, we recognise that while the volumes of aid and other development resources must increase to achieve these goals, and aid effectiveness must increase significantly as well to support partner country efforts to strengthen governance and improve development performance.  This will be all the more important if existing and new bilateral and multilateral initiatives lead to significant further increases in aid.

The Statement of Resolve further stated that the participants to this Declaration accepted the reforms suggested in the Declaration would require continued high-level political support, peer pressure, and coordinated actions at the global, regional, and country levels.  The "ownership" of this effort was largely limited to partnership countries, although "Ownership" article did identify "donors" as stakeholders without defining who or what these donors were.

Appendix B, of the Paris Declaration on Aid Effectiveness, listed 91 countries and participating countries, 26 development banks from different countries and international organizations and funds, and 14 civil society organizations.  Again, there is little in the text of the document which would specifically address the role of civil society organizations, and what was expected of them.

Nevertheless, the Paris Declaration outlined five fundamental principles for making aid more effective:

1. Ownership: Developing countries set their own strategies for poverty reduction, improve their institutions and tackle corruption.
2. Alignment: Donor Countries align behind these objectives and use local systems.
3. Harmonisation: Donor countries coordinate, simplify procedures and share information to avoid duplication.
4. Results: Developing countries and donors shift focus to development results and results get measured.
5. Mutual accountability: Donors and partners are accountable for development results.

In September 2008, a Third High Level Forum on Aid Effectiveness, was held in Accra, Ghana, resulting in the Accra Agenda for Action (AAA).  Here, developed and developing countries agreed to take bold steps to reform the way aid is given and spent.  Developing countries committed to take control of their own futures, donors to better coordinate amongst themselves, and both parties to the Agenda pledged to to account to each other and their citizens.  According to the report from OECD on Accra High Level Forum 3, and the AAA, developing and donor countries, emerging economies, UN and multilateral institutions, global funds, and civil society organizations participated in the discussions leading to the Third High Level Forum for Aid Effectiveness in Accra.  The forum participants used as a baseline, the development goals set out in the Paris Declaration on Aid Effectiveness.  What is interesting is that the list of donors were almost all donor countries, with only a few development banks and major funds.

Prior to the Third High Level Forum on Aid Effectiveness in Accra, a coalition of more than 380 CSOs from 80 countries submitted to the Third High Level Forum in Accra, a CSO critique and list of concerns about the Paris Declaration, and put foward 16 recommendations.  One of the criticisms of the Paris Declaration was that it was limited largely to aid delivery and was created without the involvement of CSOs.  Therefore, Better Aid, a civil society advocacy platform convened more than 800 CSOs in Accra  who called on attending governments for an equal development partnership and substantive changes to the Paris Declaration.  The conclusion was that the AAA captured some of the promises made by governments to make official development assistance more effective.  But, that while it reflected some progress towards meeting the goals advocated by the CSOs and addressed some of the limitations of the Paris Declaration, it faced its own obstacles to success, primarily due to the lack of time-bound commitments and indicators to monitor progress.  Nevertheless, there was some recognition at the High Level Forum 3 in Accra that CSOs were "independent development actors in their own right."

Two groups running parallel to the High Level Forum process are Open Forum for CSO Development Effectiveness and BetterAid, both active in mobilizing CSOs in Accra and Busan.  Open Forum is an initiative which was conceived and is led by a diverse coalition of CSOs around the world.  Its process is unique in its effort to create a global consensus on principles to which it holds itself accountable.  In order to accomplish its mandate, Open Forum conducts consultations with a wide range of CSO representatives around the world, as well as with non-CSO stakeholders, in over 70 countries.  Its initiative takes place amidst the on-going international aid effectiveness processes, but it is not a parallel process.

BetterAid is an open platform which unites over 700 development organizations from civil society and leads many of the civil society activities, including many in-country consultations, studies and monitoring leading up to the Fourth High Level Forum 4 in Busan Korea.  It does this by drafting position papers and monitoring effectiveness agreements, such as the Paris Declaration and the Accra Agenda for Action. BetterAid's critique of the Accra Agenda for Action was in part instrumental in increasing the role of CSOs in the in Aid Effectiveness consultations and I believe led to some of the changes that occurred in High Level Forum 4 in Busan.

Open Forum has also been instrumental in advancing the agenda of civil society, both by its participation in the Accra and Busan fora, but also by its own initiatives in convening the First Global Assembly in Istanbul, Turkey, in September 2010, and the Second Global Assembly in Siem Reap, Cambodia in June 2011 hosted and facilitated by the Cooperation Committee for Cambodia (CCC).  More than 170 CSO representatives from 82 countries gathered in Istanbul to consider and unanimously agree to adopt the Istanbul Principles for CSO Development Effectiveness.  The preamble to the Istanbul CSO Development Principles stated:

 Civil society organizations are a vibrant and essential feature in the democratic life of countries across the globe.  CSOs collaborate with the full diversity of people and promote their rights.  The essential characteristics of CSO as distinct development actors -- that they are voluntary, diverse, non-partisan, autonomous, non-violent, working and collaborating for change -- are the foundation for the Istanbul principles for CSO development effectiveness.  These principles guide the work and practices of civil society organizations in both peaceful and conflict situation, in different areas of work from grassroots to policy advocacy, and in a continuum from humanitarian emergencies to long-term development.

The first four principles address largely political and democratic oriented matters, such as promoting human rights and justice, gender equality and equity, people empowerment, democratic ownership and participation, and promoting environmental sustainability.  It is not until the last four principles that the Istanbul Principles address how CSOs are to conduct themselves, that is, with demonstrated commitment to transparency, multiple accountability, and integrity in their internal operations, commitment to transparent relationships with CSOs and other development actors thereby promoting partnerships and solidarity, and creating and sharing knowledge in which mutual learning can occur and in which vision for innovation and the future can be strengthened.

The Second Global Assembly in Siem Reap resulted in the Siem Reap CSO Consensus on the International Framework for CSO Development Effectiveness.  It expressed in its Introduction, "a commitment to strengthen civil society development effectiveness" while recognizing that:

Millions of civil society organizations (CSOs) worldwide contribute in unique and essential ways to development as innovative agents of change and social transformation.  These contributions are long-standing: CSOs support grassroots experiences of people engaged in their own development efforts; are both donors and practitioners of development; promote development knowledge and innovations; work to deepen global awareness and solidarity among people across national boundaries; and they advocate and seek out inclusive policy dialogue with governments and donors to work together for development progress. 

The Siem Reap Consensus, fleshed out some of the implications of the Istanbul Principles and provided specific guidance on how those principles were to be satisfied.  Of particular interest to me were the discussions and guidance provided with respect to three of the Istanbul Principles relating to transparency and accountability, the pursuit of partnerships and solidarity, and the creation and sharing of knowledge for capacity building of CSOs.  Section III of the Siem Reap Consensus addressed in rather specific terms how the mechanisms for CSO accountability were to be strengthened.  Specifically, since CSO mandates are the basis for their responsibility to be fully accountable,

All development actors share a responsibility to demonstrate the results of their interventions and actions, in particular with their primary and most-affected constituencies.  CSOs acknowledge and take seriously this obligation, which is set out in the fifth Istanbul Principle -- to be fully accountable and transparent for their development actions and results.  As civil society organizations, accountability is shaped by various distinctive organizational mandates, embedded in their work as agents of change for the public good, with people in their communities, and with the public constituencies that support their work.  This responsibility is put into practice through the implementation of various CSO accountability mechanisms, responding to different organizational and country contexts.

The guidance set forth in the Siem Reap Consensus with respect to Istanbul Principle No. 5, provided:

Transparency, mutual and multiple accountabilities and internal democratic practices reinforce CSO values of social justice and equality.  Transparency and accountability create public trust, while enhancing CSO credibility and legitimacy.  Democratizing information, increasing and improving its flow among all stakeholders, including political actors, strengthens both civil society and democratic culture.  Transparency is an essential precondition for CSO accountability.

Accountability is not limited to financial reporting, but should strengthen both institutional integrity and mutual public reckoning among development actors, particularly focusing on accountability with affected populations.  Community-based CSOs often have particular advantages in implementing local grassroots-accountability processes.  Progress in transparency and accountability, however, may sometimes be affected and limited by challenges CSOs face living under highly repressive regimes and laws in armed conflict situations.

So, now three years after Accra, with this background of the work of BetterAid and Open Forum, the High Level Forum 4 convened in Busan, Korea.  For the first time in the history of OECD High Level Forum events, the Fourth High Level Forum on Aid Effectiveness in Busan included CSOs as official participants, recognizing them as equal and important development actors in their own right.

There were four civil society visions for Busan:

• The first was that there should be a full evaluation of the Paris and Accra commitments.  This meant taking stock of the existing commitments by governments and donors that had not been respected and why.  Mainly, the Busan commitments should promote meaningful democratic ownership of development policies, planning and actions through full engagement with, and accountability to, all development stakeholders.
• Secondly, development effectiveness must be strengthened through practices based on human rights, especially with respect to "gender equality, human rights and decent work standards."
• Third, CSOs asked that the Busan Compact recognize CSOs as independent development actors in their own right, and that it commit donors and recipient governments to facilitate an enabling environment for CSOs work in all countries.  This meant committing to standards for government and donor policies, laws, regulations, and practices that create and sustain an enabling environment for CSOs
• And fourth, that beyond HLF-4, civil society called for future aid effectiveness commitments to promote an equitable and just development cooperation architecture.  These civil society visions were fleshed out in more detail in the Civil Society Statement to the Fourth High Level Forum on Aid Effectiveness in Busan, Korea.

This leads us to the Busan Compact, or The Busan Partnership for Effective Development Cooperation, approved on 1 December 2011.  While the focus was on Article 22 during the CCC Regional Forum "Revisiting CSO Governance and Accountability in South East Asia in the Context of Post High Level Forum 4 in Busan," I think it is reasonable to ask if the Busan Compact as a whole met any of the vision statement of civil society, and CSOs.

Article 1 of the Busan Partnership for Effective Development Cooperation, expressly identified civil society as one of the participants meeting in Busan, and recognized that all participants were united by a new partnership that was more inclusive than before, founded on shared principles, common goals, and differential commitments for effective international development.  Article 6 recognizes that HLF-4 in Busan builds on previous High Level Fora, with the commitment in Article 7 to improve, modernize, deepen, and broaden the cooperation between state and non-state actors.  Articles 8 and 9 recognize the goals set forth in the principles of the earlier High Level Fora, and the roles of civil society in achieving those goals.  Articles 14 and 16, recognize the inclusion of new actors, specifically, civil society, on the basis of shared principles and differentiated commitments.  Article 22 quoted above specifically detailed the role of CSOs as "independent development actors" and with the commitment which encourages CSOs to implement practices that strengthen their accountability and their contributions to development effectiveness.  While these are just a few examples, implicit in the entire document is the vital role of CSOs in progress toward the MDGs and beyond. 

While perhaps I have belabored this history and context a bit, the debates in Cambodia over the draft Law on Associations and Non-Government Organizations, and the basis for the CCC Regional Forum "Revisiting CSO Governance and Accountability in South East Asia in the Context of Post High Level Forum 4 in Busan" takes on a more understandable light.  See my blog posts for 17 October 2011 and 20 November 2011; http://www.rvanbroekhoven.blogspot.com/2011/10/power-to-tax-and-power-to-regulate-is.html

http://www.rvanbroekhoven.blogspot.com/2011/11/power-to-regulate-is-power-to-destroy.html

Since those two blog posts have been published, the Royal Government of Cambodia have released the fourth draft of its proposed law.  As I have read these various drafts of the law, it has appeared to me that much of the debates from the High Level Fora, and the meetings of Open Society and BetterAid have driven most of the opposition to what has been proposed in these drafts.

Morever, in his presentation in the CCC Regional Forum, Lun Borithy, identified several perceived losses and  continuing concerns from the High Level Forum 4 in Busan.  For example, it was unclear how to contextualize the rights based approach to which the participants agreed in the Paris Declaration and in Accra Agenda for Action, whether the new actors and private sector joining in the partnership would be voluntary and without social indicators, and the vague and unenforceable minimum standards on CSO enabling environment.  Some of the continuing concerns included the lack of explicit commitment to adopt human rights based approaches, the inadequate attention to women's rights, the right to development and environmental justice, and the lack of clear indicators to validate commitment progress.

As noted by CCC in its announcement and concept paper for this Regional Forum,

In Asia, various accountability schemes are being adopted and currently being actively practiced particularly in Cambodia, Pakistan, India and the Philippines but opportunities for cross learning and building strategic partnerships have yet to materialize under a south-south cooperation modality.  CSO networking and solidarity movement has proven to be an effective modality to bring together like-minded organizations to collectively reflect and define common framework for effective and result based partnership.  In light of this, this regional forum seeks to strengthen partnership in NGO accountability practices and accreditation, and to increase credibility and legitimacy in Civil Society in South East Asia and beyond.

Thus, the overall objective of the Forum was to raise awareness and promote greater participation in regional dialogue, to exchange practical experience on governance and accountability, and to strengthen the regional CSO movement toward good governance and professional practices.  In Asia, there are various schemes which have been adopted and practiced which provide some form a CSO monitoring and certification which offer opportunities for cross learning and building strategic partnerships.  Those particularly in Cambodia, India, Pakistan, and the Philippines are most closely patterned after the models followed among those member organizations of ICFO.  However, these opportunities for cross learning and forming strategic partnerships have not yet materialized under a south-south cooperation modality.

Thus, CCC, in hosting this Forum, brought together strategic partners within the Asia region for collective learning and promotion of strategies for the implementation of the Busan Compact, and specifically Article 22.  The objectives of this regional forum were:

• To share practical experiences and best practices in promoting and enhancing CSO transparency, accountability, and legitimacy in the Asia region.
• To dialogue and establish a regional learning platform on CSO accountability and good governance for the Asia region.  And,
• To situate CSO accountability and governance within the context of Post Busan Outcomes and future development trends.

The opening session of the Regional Forum began with welcoming remarks from Lun Borithy, the Executive Director of CCC providing a brief context for Forum post Busan and explaining the objectives.  He was followed by opening remarks by Mr. Ros Salin, the Director of Policy Department of the Council for the Development of Cambodia, affirming the government's recognition of CSOs as development actors and valued partners, and recognizing the importance and complimentary role they play in relation to the government in achieving development objectives.

This was followed by a three-speaker panel that described CSO accountability from the perspective of the High Level Fora on Aid/Development Effectiveness, emphasizing its relevance to current times when CSOs have become more influential development actors in their own right, and from the perspective in charity accountability in the context of challenges to charity accountability and models for promoting charity accountability.  There was also a more extended presentation of a model, described as CSO self-regulation, as practiced by CCC and as a CSO response to increasing demand for more accountability and good practices.  In this regard, there was an identification of 343 initiatives around the world that presented various models of self-regulation.

The real work and benefits derived from the Forum occurred in mini-workshops.  Here participants were divided into a number of workshops that addressed the challenges and benefits of the self-regulation process from the experiences in Cambodia (Cooperation Committee for Cambodia, CCC), the Philippines (Philippine Council for NGO Certification, PCNC)), and Pakistan (Pakistan Centre for Philanthropy), as well as Australia (Australia CSO Code of Conduct managed by Australia Council for International Development, ACFID), and India (Voluntary Action Network India, VANI).  All of these groups defined the advantages of having a regional CSO accountability platform and the common principles that should guide the platform.

While the participants in these mini workshops recognized that CSO within the region were at different stages of growth and maturity, and had in most of these instances, affirmed that an NGO Code and self-regulation system was challenging, they were considered valuable to the credibility and sustainability of individual CSOs and networks.  Nevertheless, there was lack of clarity on the idea of a regional accreditation platform.  Further, there was a recognition that all countries in the region to not yet have an acceptable NGO code of Conduct.

Since this regional forum was convened to consider CSO governance and accountability in Southeast Asia in the context of Post-High Level Forum 4 in Busan, the second day of the Forum focused on the key outcomes, challenges, and impact of HLF4 in Busan on CSO roles and work.

In the plenary session, the panelists presented the history of HLF3 in Busan, beginning with the Monterrey Consensus of 2002 and The Doha follow-up Conference of 2008 which affirmed the Monterrey Consensus, as well as the High Level Fora in Rome, Paris, and Accra.  This was followed by another series of mini workshops which addressed CSO accountability and governance, legitimacy and inclusion of CSOs, with particular focus on Cambodia, and the preservation of democratic space for NGOs.  Included here was specific discussion about the draft Law on Associations and Non-Government Organizations proposed by the Royal Government of Cambodia.  Here, the arguments were made that the draft law was not in line with Cambodia's international treaty obligations, that there had not been meaningful consultation with NGOs, informal associations, and other civil society groups, particularly at the grassroots and community level, and that it limited fundamental freedoms and human rights as a result of mandatory and onerous registration requirements and unfettered power and authority vested in the government through its administrative provisions.

Whether or not the proposed Law on Associations and Non-Government Organizations is ever enacted and signed into law (and the RGC has just released its fourth draft of the proposed law), there are a number of other laws, which according to presenters, hinder transparency and democratic space.  Examples include penal code provisions that criminalize defamation and certain types of disinformation, anti-corruption laws that fail to provide independent and transparent mechanisms to combat corruption, draft trade union law, village community safety policy, and the lack of a freedom of information act.

In the final plenary session of the forum, a panel of three resource persons were asked to give their reactions and feedback to the workshop outputs.  The key messages focused on ensuring CSO financial accountability, the taking of more responsibility of the overall context within the partnership with government, the private sector, and donor public, and to look for entry points to support the accountability movement. One of the conclusions was that a regional approach could provide a dimension of solidarity, higher visibility, and greater impact so CSOs could be more steadfast, learning from each other, and acting in more harmony as one body.

From the outset, this Regional Forum was not intended to be simply a conference in which attendees from a dozen or so countries gathered to exchange information on their experiences.  Rather, there was a rather specific agenda to include an outcome report that commits the participants to continue to process toward a south-south regional platform.  What was so interesting was how this Phnom Penh Partnership Pact for Accountability and Governance was hammered out at the close of the sessions.  Essentially, it forced the participants to to discuss strategies for implementing and monitoring commitments made in Busan, and more specifically, Article 22 of the Busan Compact.

The Phnom Penh Partnership Pact, as approved, after reciting Article 22 of the Busan Compact, stated:

Within this framework and in the spirit of living up to our commitment, we representatives of CSOs participating in this regional forum on Revisiting CSO Governance and Accountability in South East Asia in the context of Post High Level Forum 4 in Busan on December 13-14, 2011 in Phnom Penh, Cambodia, commit to continue learning from each other's experiences and work toward strengthening our national coordination mechanisms and in establishing The Asia Pacific Accountability Partnership.

* * *

We therefore resolve to:

 reaffirm our commitment to the Istanbul Principles for CSO Development Effectiveness     adopted in September 2010 by more than 170 CSO representatives from 82 countries; reaffirm our commitment to the International Framework for CSO Development Effectiveness as the basis for CSO engagement and collaboration with all development actors to achieve the goals of Busan 4th High Level Forum on Aid Effectiveness (HLF-4)

 believe that coming together as a regional group will provide us continuing opportunities to learn from each other's experiences and build on our successes with the end in view of maintaining and raising our visibility and improving our practice of good governance to enable us to make more effective and relevant contribution to a truly equitable and sustainable people's development;

commit to work towards strengthening our coordination mechanisms at the national level with the end in view of contributing more effectively to a regional CSO network (build on strategies described by attached outputs of conference workshop group on strengthening national coordination);

commit to work toward establishing a regional partnership for accountability and governance through a process that will include:

• consultation with members of relevant national networks

• finalizing a concept paper building on the outputs of this conference workshop group on moving regionally 

• mobilizing resources required

• formalizing the partnership

agree to set up a working group to initiate the process described above which will be hosted/led by CCC and includes: (names of members)

An ICFO Journey Through Asia

With ICFO's essentially Eurocentric history, and monitoring models for and by civil society based largely on Western history and context, my recent trip to China and Cambodia provided a learning experience unequal to anything I had previously experienced.  With a world and culture so far away, we in the West tend to ignore what is happening in the Southern hemisphere and in the East.  The dam that separated the East from the West was broken in ICFO when Taiwan's NPO Self-Regulation Alliance joined ICFO as members in 2008.  It was during the Annual General Membership Meeting of 2008 in which ICFO celebrated its 50th anniversary, that two organizations from the People's Republic of China joined the meeting: The China Charity and Donation Information Centre (now China Charity Information Centre), and China Association for NGO Cooperation (CANGO).

Since 2008, the leadership of ICFO has visited Taiwan and Cambodia, as well as Australia, in which Adri Kemps and I participated in a conference on charity monitoring models at the Centre for Social Impact, University of New South Wales.  See my posts of 9 December 2009, 10 January 2010, and 22 August 2011.  However, ICFO has received regular Annual Country Reports from CCIC, and has maintained good contact with Peng Jianmei, the Director of CCIC.

It was, therefore, with real pleasure that I was able to travel to Beijing for meetings with the Ministry of Civil Affairs, with CCIC, and to participate in a training session for foundations and civil society groups.  I also had the privilege of direct participation with several civil society organizations, including several local churches.

Following a meeting with the leadership of CCIC, we were able to meet with Mr. Xu Jianzhong, the Deputy General Director of the Department of Social Welfare and Promotion of Charities, Ministry of Civil Affairs, and his Division Director of Charity Promotion, Mr. Meng Zhigiang.  This meeting addressed some of the issues involved in the charity sector in China, Europe, and the U.S., and the absence of serious, extensive, detailed legislation providing for the regulation of the sector.  The goals of the Department of Social Welfare and Promotion of Charity are to empower the sector and improve the transparency and accountability.  We discussed some of the differences between China and the U.S. and Europe with respect to the development of the sector, and the factors that promote giving and charity.

Two items received more extensive discussion both in the meeting in the Ministry of Civil Affairs and in a separate meeting the following week with the leadership of CCIC.  The first was the process of articulating Standards of Responsible Stewardship, and the second was how compliance with those standards was enforced.  Mr. Xu Jianzhong was particularly interested in how the Standards promulgated by the various monitoring organizations within ICFO were developed and by whom they were developed.  There was also the question of whether they were country specific and unique.  In other words, did they have application outside the European and North American context.  I expressed the opinion that most of these Standards were universal and largely immutable, and that it was for the different countries to articulate the context and factual situations in which they would be interpreted and applied.  Thus, although they might be worded slightly differently, they dealt with the same substantive matter.

The second matter was the various monitoring models followed in Europe and North America, and how these models might be applied in China.  This raised the question about the relationship between the Ministry of Civil Affairs and CCIC, and the level of independence CCIC might have with respect to both the articulation of Standards, but more particularly with respect to monitoring compliance.  While it was recognized that some authority was vested in the Vice Minister of Civil Affairs, it was generally vested in and exercised by the Department of Social Welfare and Promotion of Charities.

The law in China requires all charities to be registered, and indeed, they must be registered to get any favorable tax treatment.  However, many are not registered and operate in a kind of grey area where they are not legally recognized and are unable to receive any tax advantage.  The Ministry does seek to help unregistered groups to register.

The meeting with the Deputy General Director of the Department of Social Welfare and Promotion of Charity, and with the Division Director of Promotion of Charity was most productive, and the hospitality and interest accorded to me and to what ICFO promotes was well-received.  As I understood the conclusion of the meeting, there was interest in an association between CCIC and ICFO, with what CCIC, and the Ministry of Civil Affairs, could learn from other members of ICFO and contribute back to ICFO and its members, the expertise and experiences with the sector in China.

The meetings the following week with the leadership of CCIC under the direction of its Director, Peng Jianmei, followed many of the same themes, however with special application to CCIC.

CCIC is a leading monitoring and appraisal organization governed by the Social Welfare and Charity Promotion Department of the Ministry of Civil Affairs of China.  In the last five years, CCIC has emerged as the leader with an expanded database, infrastructure, and experienced services to meet the growing needs of the nonprofit sector in China.  Its vision is the enhance and empower a transparent and effective third sector in China with the capability of responding to the increasing social needs.  Its mission is to promote the development of philanthropy and charity together with the government, corporate, adn NGOs establishing the national platform, providing professional consulting, and enhancing accountability of charitable organizations.  Its positions include leading national information platform, professional service provider, independent policy advisor, competent and reliable partner of NGOs, and providing a vehicle for social change and innovations.  Its core values include total accountability and transparency, high efficiency, compassion and enjoyment, and independence and individuality.

CCIC has a board of 28 members, including the Director, and includes representatives from government, corporations, and public welfare.  While the Board supports CCIC and what it does, and is involved in projects and strategic and project planning, it does not actually exercise any governance responsibilities.  The Board meets in annual meetings, with the executive committee meeting weekly.  However, it does approve strategy, that could include a relationship with ICFO.

The Director and Vice Director of CCIC had a number of ideas for engagement with ICFO and its members that sounded quite intriguing.  They identified two problems in the monitoring process in which their reports address.  The first is informing the public about the best charitable organizations in terms of transparency and accountability.  The second is informing the public about which charitable organizations are most effective in their programs and charitable work.  Both of these issues are being addressed in various fora by the members of ICFO.

In order to advance this engagement with ICFO, CCIC proposed consideration of a tour of ICFO member organizations to see how they are addressing these issues and to exchange ideas; to engage in discussions about what CCIC is doing to public associations; and to learn from ICFO and its members information about monitoring models that might be applicable to the China context.

As part of its capacity building for the sector and for foundations and charitable organizations, CCIC conducts regular training sessions with different constituencies, as well as provide consulting services.  One such session was conducted during my time in Beijing, and I was given the privilege of participating in that training.  The focus of this training was on public credibility of charitable organizations.  More than 30 foundations, grassroots organizations participated in the Salon.

This training Salon addressed the models of government monitoring, and third-party, or independent monitoring of civil society organizations with various accreditation and certification models through self-regulation schemes.  Attention was given to standards of responsible stewardship, governance, and transparency, and fundraising, the ICFO International Standards, and challenges facing any type of standard setting and monitoring regime.  Representatives of BSR (Business for Social Responsibility) Beijing office addressed disclosure of information and practical tools for insuring adequate and proper disclosure.

The CCIC website newsletter reported on the training session that:

China charity organizations, faced with the emergence of another problem, the public face of the many questions, how to improve public charitable organizations' integrity, accountability, self-discipline, transparent mechanisms to rebuild the credibility of public charitable organizations, to improve constantly eroded credibility of charitable organization was placed in front of a problem.  The charitable contributions in the public information center invited International Committee on Fundraising Organizations President Rollin van Broekhoven who introduced some foreign advanced experience and practice, for solving the local Chinese charity challenges facing the development sector, which would be useful.

http://www.charity.gov.cn/fsm/sites/newmain/preview1.jsp?ColumnID=290&TID=20111208132304593701005

As Mr. Dou Yupei, China's Vice Minister of Ministry of Civil Affairs, said:

China Charity Information Centre (CCIC) has achieved tremendous success in giving data analysis and promoting information disclosure that contributed greatly to the cross-sector working platform for donors, charitable organizations, and beneficiary.

 In 2010, CCIC assisted policy makers and various charitable organizations in organizing diversified events to promote the philanthropy and charity, conducted scientific researches on China's philanthropy and released research reports and publications concerning philanthropy development and social changes.  For all these years, CCIC played a key and important role as policy advisor and has been a part of China's philanthropy.

Pei Bin, Director of Partnership Development, BSR, said:

CCIC has emerged as a leader with an expanded database, infrastructure, and extended services to address the growing needs of the nonprofit sector, driving transparency and information disclosure by releasing the "China Charity Transparency Annual Report."

While much of what I observed and experienced supported these statement, there is still a large portion of the sector that is not registered and as I wrote above, that operates in a gray area of legality.  The reasons are complex and not easily reportable in this post, but are part of the present reality in China.  What I found interesting is that many of these organizations are not ignored or left out of the work of CCIC.

I had a number of  meetings with civil society organizations and associations connected with several churches in Beijing.  These allowed me to connect leaders of these organizations, and with the people and culture of China.  One of these groups supported the Living Tree Orphanage

just outside Beijing.

I had learned of this orphanage from a friend before traveling to China, and had it on my agenda to visit.  However, because of my schedule in Beijing, I was unable to visit Living Tree and volunteer there for a day.  The orphanage is in an apartment complex with a number of suites used to shelter and care for special needs children.  Ms. Tina is the founder and head of the orphanage.  The majority of the 35-40 children in the orphanage suffer from cerebral palsy.  This is a remarkable work in the Beijing area and one which is highly regarded by a number of groups and churches, as well as by the staff of CCIC.

Following two weeks in Beijing, I continued on to Phnom Penh, Cambodia where I participated in the Regional Forum, "Revisiting CSO Governance and Accountability in South East Asia in the context of Post-High Level Forum 4 in Busan."  There were approximately 100 delegates representing 13 countries, extending from Pakistan and India, to Korea, Vietnam, Laos, Cambodia, and the Philippines, to Australia.  But, more about this Forum in the next post.

Merry Christmas and Happy New Year From ICFO

Power to Regulate is the Power to Destroy

Since I will be heading to Cambodia in the near future for "A Regional Forum, 'Revisiting CSO Governance and Accountability in South East Asia in the Context of Post High Level Forum 4 in Busan,'" my attention here tends to be more focused on Cambodia, its NGO work, and the draft Law on Associations and Non-Government Organization, which I introduced last post.

Reading just weeks ago about the flooding in Cambodia, and the report of Journeys Within Our Community about the work they are doing in Cambodia, I was struck by one more disaster that causes so much pain and suffering to so many.  The account of the day was most interesting, and I present much of it here.

The day was Tuesday, 18 October 2011.

The day started early with the first children arriving at 7 am.  While Somath, our Librarian, provided fun and engaging activities in and outside the library.  Vantha, our Office Manager and I (Nicola, Managing Director) headed into the squatters' villages to advertise and importantly to check if there had been a change in the conditions.  Our main concern was to check whether people had a dry place to sleep.  Fortunately although levels had risen a little, the raised beds provided a refuge from the wet.

Vantha distributed information about the children's dry haven.  Interest was high and we expect numbers coming to the school to increase tomorrow.  We found so many children playing in the water -- water always seems fun.  Unfortunately this water is not the place to be playing as it currently doubles as a latrine.  

These children have found a mostly dry place to perch, but they were excited to hear they could come to JWOC all day and on Wednesday.

We headed back to JWOC slowly, trying to not fall over on the slippery mud or fall down any holes obscured by the water which we nearly managed.  By the time we were back at the library, the numbers of children had increased and it was getting close to lunchtime.  The children had all showered and scrubbed with antibacterial soap and cuts and other sores had all be treated. Southeast Asia is experiencing worse than normal flooding.

The Philippines, Thailand, and Cambodia are suffering particularly badly.  Siem Reap Province, where the majority of JWOC's work takes place, has been hit with a wave of flooding -- damaging homes, ruining crops and destroying roads and other infrastructure.  In town, many businesses are closed along with one of the major universities.  For those living off the main roads, just getting out of the house means wading through dirty water that in places is above knee height.  In the rural parts of the province villages are becoming cut off as road are washed away.

People in the communities JWOC works with are so far surviving but it's an anxious time -- water levels are expected to rise again, the risk of water and mosquito borne disease is high, and then there's the clean up and repair to consider once the water does eventually go down.

Or as reported in the Sunday Mirror of 20 June 2010, they are known as the rubbish dump kids . . . starving children who scavenge for scraps of food on a toxic mountain of waste.

He is a former hair dresser who runs a "charity" in Cambodia inviting you to send him money to save them.

David Fletcher, 65, appears to be the Good Samaritan, feeding hundreds of children who affectionately know him as "Papa."  But, Fletcher hides a dark secret -- he was jailed in Britain for statutory rape of a 15-year-old girl and videotaping the horrific crime.

He know uses the guise of his unregistered charity in Cambodia -- where he fled to six years ago -- to spend every day with little girls, some as young as eight.  The pervert raises money from tourists who believe they are providing food and shelter for hundreds of poor and hungry children.

Fletcher has even bought himself a 17-year-old Cambodian bride for £150 who he met on the dump -- sold by her own mother to pay off debts.  Genuine charities are so concerned they attempted to outbid him to keep the girl out of his clutches.


Fletcher was convicted at Norwich Crown Court in July 1997 of statutory rape of a 15-year-old girl who he had plied with champagne and offered £250 for sex.  When asked about his conviction he was unapologetic, saying: "Oh yes.  She was just my girlfriend.  They caught me.  I just did it ahead of her 16th birthday.  People will stoop very low to say bad things about me."


Fletcher runs the Rubbish Dump Project and has a website which tells the moving story of Phnom Penh's garbage dump kids.  He invited readers to send donations to his private bank account and claims every penny is spent on the children.


The Sunday Mirror signed up for a tour of the dump and handed over US $ 50, the amount Fletcher says will feed 150 children.  When we got to the garbage mountain at Stung Meanchey on the outskirts of the capital, he took a cream bun and some fruit to "my favorite little girl."  With his tuk-tuk driver he dished out fruit to more than 100 desperate children amid the stench.  The slum families try to survive on what they can scavenge, so flock to him when he has food.


The pervert preys on their desperation, building up the children's trust -- including his 17-year-old bride-to-be, Yang Dany, who he met at the tip.


Earlier in the day our investigators saw British-born Scott Neeson, who runs the respected charity, Cambodian Children's Fund, try to persuade Yang Dany's mother to change her mind about letting her daughter marry Fletcher.  Inside the corrugated shack in Dhamnak Thom Village No. 1, Mr. Neeson, tried to negotiate with the mother.


As Mr. Neeson tells it, "The fact is that these children can be bought.  It is difficult to stop it.  The British Embassy have been told about Fletcher.  Many organizations have files on him, but nothing has happened."
According to the Sunday Mirror, the abuse of children by foreigners in Cambodia is hampered by institutionalised corruption in a one-party state run by Hun Sen, who has locked up opposition leader Sam Rainsy.


As one former colleague who left quickly after he realized what Fletcher was up to said: "There were tens of thousands of dollars coming in.  Cash was being donated by Rotary Clubs and big private donors.  We also had complains of him being too familiar with young girls."

But, now this with Scott Neeson:

Or,

On 4 August 2011, the Ministry of Interior suspended the local organization of Sahmakum Tnaut (SST).  SST is a Cambodian urban NGO with a mission to provide "pro-poor technical assistance for housing and infrastructure and to inform dialogue and raise awareness about urban issues."  It was established in September 2005 and officially registered with the Ministry of Interior in December 2006.  It addresses ongoing difficulties with land alienation and evictions.  It does this through research and debate, trying to link with government policy where possible and by supporting genuine community complaints and grievances.  "This includes helping communities articulate their concerns and by bringing rights issues and abuses to the attention of local and international media, donors, and other NGOs and INGOs."

As noted in a report in the Asian Times of 20 September 2011, STT was one of several NGOs involved in the monitoring of resettlement of residents displaced by the Asian Development Bank (ADB) and AusAID funded rail project.

In its initial letter of suspension, the Ministry of Interior asserted that the suspension was due to inconsistencies in the organization's paperwork.  However, in a statement issued by the Ministry on 14 August, the Ministry said that:

SST operated and incited people to oppose national development by the government in order to make the development partners suspend or stop the project.

The $141 million project was to provide for the renovation of Cambodia's "decrepit" rail system which could impact approximately 4,000 poor families living along the tracks.  SST opposed the settlement options the government provided to those affected by the project, and also accused the government of systematically downgrading land values along the rail line in an attempt to short-change residents' potential compensation.

The Minister of Economy and Finance, wrote Prime Minister Hun Sen on 17 June 2011 requesting punitive measures again SST and Bridges Across Borders Cambodia (BABC), another NGO that had been active on the railway project.  In this letter, the Minister of Economy and Finance stated that an unnamed consultant for ADB asserted that the bank was coming under "political pressure" from these two NGOs, and asked the government to take immediate action to stem their activities.  The Minister also issued instructions for the Prime Minister's approval: "Do not allow foreign NGOs to do advocacy work.  Local NGOs who do advocacy work must not have foreigners involved or interfere."  Referring to the draft Law on Associations and Non-Government Organizations, he requested action to nullify the eligibility of these NGOs and requested the Council of Ministers to review and approve the draft law "in a speedy manner."

On 7 September 2011, Cambodian authorities and police, armed with automatic weapons, disrupted a human-rights training event organized by two local NGOs in Kampong Thom province.  According to a statement issued shortly thereafter by the Cambodian Center for Human Rights (CCHR), which participated in organizing the training event, police photographed those participating in the training, including local activists and community members protesting against the confiscation of lands.  Participants were told that they did not have the necessary and required permission to hold the training workshop.

These stories are then the context for the government's attempted regulation of the sector through its draft Law on Associations and Non-Government Organizations.

In late June 2011, there was an open forum for CSO development effectiveness held in Siem Reap.  From this open forum there emerged The Siem Reap CSO Consensus on International Framework for CSO Development Effectiveness.  In September 2010, more than 170 CSO representatives from 82 countries around the world met in Istanbul, Turkey to consider and adopt the Istanbul Principles for CSO Development Effectiveness.  There were eight principles adopted in Istanbul that were the foundation for the Siem Reap CSO Consensus on International Framework for CSO Development Effectiveness.

CIVICUS in a recent publication stated that the "growth of civil society in scale and importance over the last two decades has increased its vulnerability."  As CIVICUS noted in this release and as those of us who observe the sector know, civil society is challenged from three directions.  The first challenge is internally, by risking the public trust.  The second is externally, by political threats to its right to exist.  And thirdly, by the general threats that face humankind as a whole, such as violent conflicts, poverty, and inequality.

In "A Report of the World Movement for Democracy" entitled Defending Civil Society, co-authored by the International Center for Not-for-Profit Law (ICNL) and World Movement for Democracy Secretariat at the National Endowment for Democracy (NED), five legal barriers to civil society organizations were identified.  These included barriers to entry, barriers to operational activity, barriers to speech and advocacy, barriers to contact and communication, and barriers to resources.

As a result of these threats identified by CIVICUS, CIVICUS established its strategic directions:  First, protecting the rights of civil society actors.  Second, strengthening good practice within civil society.  This is a major purpose for the existence of ICFO and its members operating in different countries.  Third, strengthening civil society's ability to influence policies and practices of governments, international institutions and the private sector.

I bring this up because the first and second challenges identified and the first and third one of these strategic directions address, it seems to me, is what at stake in the matter of the draft Cambodian Law on Associations and Non-Government Organizations.  Indeed, it seems to me that all of the barriers identified in the report of the World Movement for Democracy, Defending Civil Society, are implicated by the draft Cambodian Law on Associations and Non-Government Organization.  On 23 August 2011, ten International NGOs (INGOs) sent a letter to the U.S. Secretary of State requesting immediate attention to what was asserted to be a "very serious development in Cambodia," namely the release of third draft of the Law on Associations and NGOs.  This letter was signed by representatives of Human Rights Watch, the International Federation for Human Rights, Civil Rights Defenders, Protection International, Freedom House, Asian Forum for Human Rights and Development, World Organization Against Torture, Global Witness among others.

According to this letter, this new law, if enacted, would allow the Royal Government of Cambodia (RGC) to intimidate and potentially shut down local, national and foreign NGOs, associations, and informal groups that criticize the government or government officials. What was requested by these INGOs was that the United States press Cambodia to end its efforts to promulgate this law and make it clear to the Royal Government of Cambodia that the United States will reassess its bilateral assistance to to Cambodia and "will also urge all agencies providing multilateral assistance, including the United Nations and international financial institutions to reassess their assistance, with particular emphasis on projects involving RGC agencies."

While these INGO signatories stated that civil society actors, both local and foreign, play a vital role in the growth in commerce and industry "through monitoring, community development, poverty alleviation, humanitarianism, research, and advocacy," the draft law would threaten "to severely restrict civil society's freedom of association and expression, thereby preventing civil society organizations and NGOs from fulfilling these roles."  "Efforts to ensure transparency and accountability in project implementation will also likely be negatively affected as civil society groups monitoring government projects face tighter, and potentially hostile government scrutiny."

It seems to me that the transparency and accountability about which these INGOs were concerned is not necessarily the transparency and accountability which we in ICFO address in monitoring charities' operations and activities in accordance with certain prescribed standards.  In other words, the kinds of standards and monitoring that go beyond the political issues raised by advocacy organizations and human rights watches; the standards that address the issues that lead to the loss of public trust in civil society organizations identified in the CIVICUS release mentioned above.

In their letter to the Secretary of State, the INGO signatories addressed an example of what they asserted to demonstrate how the RGC's actions reflected its intent in seeking wide-ranging powers over the Cambodian and international civil society organizations and what "may be a harbinger of the future of NGOs and associations if the current draft law was enacted.  The example was the RGC's suspension of a local NGO Sahmakum Teang Tnaut's (STT) activities for five months which I discussed above.  According to news reports, the letter sent by the Ministry of Interior suspending STT activities for five months accused the charity of failing to modify its leadership structure, and make revisions to its statute (charter documents) "according to the instruction of a specialized department."

Additionally, these ten major INGOs sent an almost identical letter to the UN and to 17 UN agencies, with copies to the UN agencies' offices in Cambodia, complaining about the draft law and its consequences for the sector.  In these letters to the UN and its agencies, the INGOs stated that the UN agencies "Make it clear to the RGC that if the law is adopted in its current form, you agency will be compelled to reassess your programs and assistance with a particular emphasis on projects directly involving RGC agencies.  According to the Deputy Director of the Asia Division of the INGO, Human Rights Watch:

It is long overdue for the UN, and in particular the UN Country Team in Cambodia, to stand up and tell the Cambodian government that this draft law violates core human rights and will severely damage participatory, grass-roots development efforts that are so critical for Cambodia's future.  What is at stake in this 20th anniversary year of the Paris Peace Accords and UNTAC is nothing less that one of the core legacies of that huge international effort -- the development and flourishing of a vibrant Cambodian civil society movement.  Those groups play a critical role in so many areas of daily life in Cambodia, yet now they are under threat.  The UN needs to stop hiding in its offices and meeting rooms, make it voice heard, and be true to its human rights principles.

It seems to me that this might be just a little over dramatic.  Indeed, I read where some commentators thought these letters were a bit self-serving for the human rights advocacy groups.  However, although the focus of these letters seems to be the matter of human rights and the rights of advocacy groups to oppose anything that a state might do to limit the rights of free expression and dissent, the letters do touch on a larger danger, whether or not a vibrant civil society is at risk or not.

For purposes of this post and the consideration of the draft Law on Associations and Non-Government Organizations is the definition of civil society organizations and the recognition of the variety of such organizations.

Millions of civil society organizations (CSOs) worldwide contribute in unique and essential ways to development as innovative agents of change and social transformation. These contributions are long-standing: CSOs support grassroots experiences of people engaged in their own development efforts; are both donors and practitioners of development; promote development knowledge and innovation; work to deepen global awareness and solidarity among people across national boundaries; and they advocate and seek out inclusive policy dialogue with governments and donors to work together for development progress.

Accordingly,

"CSOs can be defined to include all non-market and non-state organisations in which people organise themselves to pursue shared interests in the public domain.  They cover a broad range of organisations that include membership-based CSOs, cause-based CSOs, and service-oriented CSOs.  Examples include community based organisations and village associations, environmental groups, women's rights groups, farmers' associations, faith-based organisations, labour unions, cooperatives, professional associations, chambers of commerce, independent research institutions, and the not-for-profit media.

What all this suggests in the variety of organizations involved in Cambodia, extending from relief and development to education and advocacy for democracy and human rights.  The stories and video clips at the beginning of this post focus on the organizations that exist and function to serve the poor and vulnerable people in Cambodia, while it seems that much of the direct effort to address the impact of the law has been provided by those organizations and association involved in the efforts to preserve and maintain the much needed democratic space in which those elements of civil society are able to exist and function to serve the poor and vulnerable people of Cambodia.

In addition to the Istanbul Principles accepted in Siem Reap in June 2011, including those involved in strengthening the accountability of CSOs, something which was important for considering the role of CSOs in society was a particular section of the Siem Reap consensus that focused on the role of government.  Specifically, that while CSOs are independent and autonomous, they are not actors working in isolation.  This is one of the civil society concepts that is frequently forgotten and ignored, and is the heart of the dispute in Cambodia.  Indeed, it is the heart of the lack of understanding in many countries.

The fact is, that it is not simply CSOs that we associate with traditional ideas of relief and development that are profoundly affected by the context in which they operate.  This is the case with all CSOs.  The policies and practices of all governments, not just those of developing countries, and of donors affect the practices and capacities of CSOs to engage in development, but not just development.  Thus, as stated in the Siem Reap Consensus report,

Progress in realizing the Istanbul Principles in CSO practice, therefore, depends in large measure on enabling government policies, laws and regulations consistent with the Istanbul Principles.

However, notwithstanding the Istanbul Principles, the work of any CSO, no matter its role in society, is in large measure dependent upon the legal context and structure in which it operates.  This is true not only with respect to where the NGO or charity actually performs the public benefit services, but also in the countries in which funds are raised, no matter where the actual work is performed.

It is at this point where the draft law in Cambodia becomes a matter of significant concern because it not only appears to focus on where the development work is being performed and by whom (i.e., the kind of CSO, NGO, and charity), but where the source of funding and donations is.

In my last post, I discussed the second draft, and mentioned that it had been withdrawn and a new draft Law on Associations and Non-Governmental Organizations had been issued by the government.  The government issued the third draft on 29 July 2011.  Although, it too was ultimately withdrawn and a fourth draft is anticipated, because of concerns about the contents of the fourth draft, it is important to briefly discuss some of the major features of the third draft and objections thereto.

The second and third drafts were basically the same, but with a few improvement in the third draft.  These improvements related generally to the timing of government reviews of registration applications of domestic NGOs, and some changes with respect to requirements for foreign NGOs entering into Memorandum of Understanding with the Ministry of Foreign Affairs, with exception for foreign NGOs operating in Cambodia for less than a year, although there are notification requirements with respect to these aid projects.

However, the third draft failed to address some of the problem areas identified with respect to the second draft.  Specifically, these included the failure of the draft to address the denial process in a way consistent with international law; the prohibition of any activities of unregistered NGOs and associations; the requirement that the founding members of both NGOs and associations must be Cambodian nationals; the requirement for a high minimum membership for associations thus impeding the formation of small common interest association groups; inadequate standards for government determinations to suspend or terminate an association or NGO; constraints on associations and NGOs through notification and reporting requirements which could prove burdensome; and barriers to registration and activities of foreign NGOs.  In this latter instance, there appears to be no way in which a foreign NGO can operate in Cambodia independently of the government in addressing public benefit goals or community needs.

Essentially, the major issues with the third draft of the Law on Associations and Non-Government Organizations are: the mandatory and complex registration process; the lack of safeguards to insure that either the denials of registration or terminations were objectively imposed; the lack of time periods for appeals of denials of registrations; and the fact that key terms and concepts are left undefined and vague.  While I am not convinced that the proposed law as drafted necessarily produces a more transparent and accountable sector or a more informed public, it has the potential to regulate the entrance of civil society organizations into a  legitimate civil society presence in Cambodia.  This is the very danger that CIVICUS addressed: namely, the very right to exist at all.

According to the joint statement of civil society organizations, including NGOs and associations, the preparation and issuance of the third draft departed from the practice of state-civil society cooperation and constructive dialogue which is common in democratic societies, and which as been a key factor in the development of Cambodia as a war-torn country to a vibrant developing country.  Civil society organizations, including NGOs and associations, expressed their concern that this third draft granted far-reaching powers to government authorities to control citizens' rights to assemble and express themselves, in accordance with the Cambodian Constitution and international agreements to which Cambodia is a party, including the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights.  Nevertheless:

We understand that a sovereign state such as Cambodia has the right to promulgate laws, regulations and practices in accordance with international democratic principles. However, the process of enacting laws must respect those democratic principles. Moreover, new laws must not infringe upon the fundamental rights of the people, including their rights to freedom of association and freedom of expression. The social and economic development of Cambodia in recent years would never have happened if the opportunities to freely organize and express opinions had been curtailed. Successful development of societies worldwide goes hand-in-hand with increased openness.

It seems to me that the context of many of the concerns expressed in these various analyses of the draft Law on Associations and Non-Governmental Organizations is directly traceable to concern about what are generally regarded as democratic rights and freedoms, particularly within the realm of human rights.  What I find interesting about most of the correspondence and analysis of the draft law is that it largely focuses on freedom of assembly, freedom of speech and expression, and the right to peaceful political opposition to what the government is attempting to do across a range of activities, not simply the enactment of the proposed law.

Indeed, this is borne out by the reports of the UN Special Rapporteur on human rights in Cambodia, and the Special Rapporteur of the Human Rights Council, regarding the situation in Cambodia, in which both urged the Cambodian authorities to review the draft law on associations and NGOs, inasmuch as "it may hamper the legitimate work of NGOs in the country."  For example, in a statement issued by the UN Special Rapporteur, Professor Surya P. Subedi, on 3 June 2011, he said:

While the general situation of human rights has progressed in certain areas, it has not improved much in others.  Examples of the latter are land rights and evictions, and freedom of speech.  Because of the fear of possible charges of defamation, disinformation and incitement against them, many people, such as journalists, human rights defenders and political activists seem to be resorting to self-censorship.  I am concerned by the use of such charges against land activists and individuals making claims on disputed land.  I am dismayed to hear about disproportionate use of force by law enforcement officials during peaceful protests by individuals involved in land disputes.

While this criticism focused on the larger issue of human rights and rights of dissent rather than on the proposed draft Law on Associations and Non-Government Organizations, the implication is that this is a part of the concern that is expressed in opposition to the draft law.

On 19 September 2011, the Quick Reaction Unit of the Office of the Council of Ministers issued a statement titled "NGOs Hidden Agenda."  Referring to the letter written by the ten INGOs to the 17 United Nations agencies, the statement of the Quick Reaction Unit said:

This "letter" is the latest example of the relentless pressure big-name NGOs are exerting on the Royal Government of Cambodia (RGC) to fashion its draft law on NGOs in such a way that it conforms to "international standards."  It is accompanied by a warning -- effectively a threat -- that Cambodia's development partners must review their involvement in the country.  In truth, the year-long campaign against the RGC's duty to regulate NGOs is a well-designed scheme to let them run wild.  These big organisations apparently envisage a "wild, wild West" where NGOs can ride free and shoot at will.  Even worse, it's a cheap stunt designed to bring the RGC to its knees and blindly accept the rules of its international masters.  But if one reads between the lines of this "letter", the flaw in its argument is revealed.  It is the double standard in the application of the principle of transparency and accountability, which cannot be tolerated by UN agencies or the international community at large.  . . .

The people who run NGOs benefit from them differently: the first group from effective delivery of social services to the needy, and the second group from executing the orders of international legal and human-rights organizations based in developed countries that provide funding for NGOs operating in Cambodia.  For more than 20 years, NGOs in Cambodia have behaved as if the country of the Khmers is the Wild West -- good for riding and shooting, with no questions asked -- thanks to their overseas sponsors and funding partners, who are honest and compassionate by nature and who believe the funds provided to the NGOs in Cambodia will be used for the betterment of neglected Cambodians.  The sponsors and funding partners of legal human-rights NGOs, however, have a hidden agenda.  They seemingly aspire to become famous by bringing down an elected government that, for myriad of reasons, they don't like.

 This statement on behalf of the Office of the Council of Ministers continues in much the same tenor, complaining that the letter of the ten INGOs exaggerates the potential negative impact of the registration and reporting scheme set forth in the draft law, and "would be laughable even to a second year student in basic accounting."  Indeed the accusation made in this statement was that the letter of the ten NGOs was merely an attempt to shore up misplaced accusations against Cambodia's NGOs draft law and represented a concerted effort to protect the group of NGOs involved in the advocacy of the legal and human rights in Cambodia from having to adhere to principles of transparency and accountability.

I think also what comes through is a fairly profound misunderstanding on the part of the government, and perhaps major participants in the NGO community in Cambodia, about the very nature and essence of civil society.  The exchange of statements and correspondence can hardly advance the cause of civil society in Cambodia.  What I see as missing in much of the debate is the role of charity and public benefit organizations that are not directly involved in the political debates of the time.

While the sovereign may have authority to regulate the sector, I am not persuaded that the kind of regulation prompted by the draft Law on Associations and Non-Government organizations is necessarily the best for the country, the people, and the ability of NGOs to provide a variety of civil society services to the country and its people.  Surely we can easily distinguish between the existence and operations of organizations, such as, Journeys Within Our Community and The Cambodian Children's Fund, on one hand, and the "charity organization," operated by David Fletcher on the other.  Surely there must be criminal codes that address this kind of activity and conduct, and under which such individuals could be prosecuted.

If there is to be some tax exemption authorized or some subsidy to the organization permitted, a registration that simply requires the submission of charter documents, the organization's statutes, and bylaws, for example, might be proper, if the organization seeking registration can enjoy the freedoms and rights recognized in international law.  The organization might be required to articulate its public benefit mission and basic government structure.  Similarly, many states, and perhaps most states with an established civil society sector in which there are tax exempt provisions and tax deduction authorized to donors for donations made to a registered organization,  reasonable registration requirements are generally mandatory, but are flexible with regard to information sought for the tax exempt status.

Similarly, certain basic reporting requirement often exist, such as the filing of informational tax returns.  How detailed they are and at what income level they would be required versus simply permitted, could be established by democratic action within the existing political structure.

The exchange of correspondence and statements issued by government authorities raise a number of interesting questions.  One is simply the question of what is a public benefit organization that may be entitled to favorable tax treatment, for example.  This is the kind of question addressed by the Australian High Court in Aid/Watch Incorporated v. Commissioner of Taxation which I addressed in my last post, or even the discussion of that issue in the Statute of Elizabeth.  Indeed, it may well be in the power of the sovereign to deny certain tax benefits to organizations primarily engaged in advocacy as distinguished from those involved in the delivery of social services to the poor, the disenfranchised, and to the public generally, such as medical care, education, and cultural life.

The area of interest addresses the role of government in providing welfare and social service to the public as distinguished from the role of civil society and the public benefit nonprofit, volunteer sector to provide those services.  This is frequently raised where the government provides funding for specific social needs through nonprofit and other civil society organizations.  What is the role of volunteer organizations in both the provision of social benefit services and in advocacy in favor of democratic ideals.  It seems to me that it is widely accepted that for a society to function properly and for democratic rights and obligations to provide strength and stability to a nation, a strong and capable government, a vibrant market driven business sector, and a free and open civil society sector are all involved and active.

A third issue is what moral or ethical principles, or standards of conduct are to apply.  In other words, are principles of morality and values that provide direction to society determined by governments, or are they found to exist in nature and discovered to be made applicable in different and diverse environments?  Thus, in absence of any articulated rules and regulations (or legislation) promulgated by a central government authority, are associations and civil societies able to exist and enter into the public domain and operate with minimal interference by government?  This also might raise the question which seems to be apparent in the correspondence from the ten INGOs; that is, are rights determined on the basis of international law, and if so, just what is international law?  Or does international law, whether by treaty or custom, simply recognize rights that are inherent in human societies and have been recognized from time immemorial?

Assuming some minimal registration is required within the domain of sovereignty of a state for the overall protection of its citizens from fraud and criminal conduct and to promote well-informed and responsible citizens, what is the level of freedom that is within the natural rights of humankind that allows individuals and a society to flourish?

As I have studied the situation, I have been reminded of the Report of the World Movement for Democracy, Definding Civil Society, jointly authored by the International Center for Not-for-Profit Law (ICNL) and the World Movement for Democracy at the National Endowment for Democracy.  While the attention in this report was focused, it seemed to me, and the role of civil society in protecting and advancing democracy, what struck me was the danger to a functioning civil society sector that both promotes democracy, but also addresses the needs of the poor, the sick, the downtrodden, and those who are in some way oppressed, especially where government simply are not able to address those needs, and when it does, it creates a citizenry of dependency.

In the Executive Summary of this report, the authors make the following observation, which I think is born out by the history of the drafting of the Cambodian Law on Associations and Non-Government Organizations:

Governments have tried to justify and legitimize such obstacles as necessary to enhance accountability and transparency of non-government organizations ("NGOs"); to harmonize or coordinate NGO activities: to meet national security interests by countering terrorism or extremism; and/or in defense of national sovereignty against foreign influence in domestic affairs. This report exposes such justifications as rationalizations for repression, and, furthermore, as violations of international laws and conventions to which the states concerned are signatories.

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The report continues:

Many regimes are imposing controls on civil society under pretexts of ensuring security, political stability, and non-interference in the country's internal affairs.  Governments place restrictions on NGO activities, constrain their work. and harass and intimidate civil society activists in violation of internationally accepted principles of freedom.  NGOs that advocate for human rights and democracy, including many that work in conflict zones, are particularly targeted.  Regimes justify such actions by accusing independent NGOs of treason, espionage, subversion, foreign interference, or terrorism.  These are but rationalizations, however; the real motivation is almost always political.  These actions are not about defending citizens from harm but rather protecting those in power from scrutiny and accountability.

 When we talk about the power of the sovereign, we must also include the rights attendant to freedoms.  If citizens and associations, whether informal associations of individuals of like interests, or more formal associations formed by individuals to promote public benefit through either benevolent activities or advocacy, enjoy any freedom of association, of expression, of acts of kindness and benevolence, for example, then by the force of logic, the rights and power of the sovereign are constrained.  In other words, is there an inherent symbiotic relationship between the scope of government powers and individual rights?

In its grasp for extending its power, if this is the case, how will the RGC distinguish between those charitable organizations, such as Journeys Within Our Community, the Cambodian Children's Fund, and the Cambodian Children's Trust which meet severe needs of the people on the one hand and STT, Human Rights Watch, International Federation for Human Rights, Civil Rights Defenders, Freedom House, World Organization Against Torture, Global Witness, and the other INGOs that were signatories to the letters to the United States Secretary of State and the Administrator of the United Nations Development Programme?

Maybe, like the Cambodian children waiting for the arrival of humanitarian workers at the School for Vulnerable Child Garbage Workers at the Steng Meanchey Dump outside of Phnom Penh, the civil society sector will have to wait for permission from the RGC to provide the valuable services so desperately needed while the needy go unserved because the humanitarian workers never come and people wait for a promised democracy.

Well, more another time.