Friday, December 30, 2011

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.












Sunday, November 20, 2011

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:

video

Or,

video

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.
 * * *
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.




Monday, October 17, 2011

Power to Tax and Power to Regulate is the Power to Destroy

Chief Justice John Marshall, writing for the United States Supreme Court in its 1819 decision in McCullough v. State of Maryland, et. al., quoted from Daniel Webster's argument in the case, "The power to tax is the power to destroy."  Indeed, as the Chief Justice said:
     The power if congress to create, and of course, to continue, the bank, was the subject of the preceding part of this opinion; and is no longer to be considered as questionable.  That the power of taxing it by the states may be exercised so as to destroy it, is too obvious to be denied.
And, I suspect that the power to regulate also is the power to destroy.  This is part of the theme of this post.

British author of numerous books and speaker of international fame, Os Guinness, tells the story in his book, Unriddling Our Times: Reflections on the Gathering Cultural Crisis.

Prisoner 174517 was thirsty.  Seeing a fat icicle hanging just outside his hut in the Auschwitz extermination camp, he reached out the window and broke it off hoping to quench his thirst.  But, before he could get it to his mouth, a guard snatched it out of his hands and dashed it to pieces on the filthy ground.
"Why?" the prisoner burst out instinctively.
"Here, there is no why," the guard answered with brutal finality.
That, for Primo Levi, the Italian Jewish scientist and writer, was the essence of the death camps -- places not only of unchallenged arbitrary authority but of absolute evil that defied all explanation.  In the face of such evil, explanations born of psychology, sociology, and economics, were pathetic in their inadequacy.  One could only shoulder the weight of such an experience and bear witness to the world.
 Forty years later, on 11 April 1987, Primo Levi plunged to his death, joining a long and sad list of the victims of Nazi atrocities who took their own lives.  Although he survived the experiences of Auschwitz, eventually got married and had children, wrote books and won literary prizes, he saw his core mission in life as bearing witness to the truth of the horrors on that period of history and guardian of the memory.

The point Os Guinness makes in presenting this story is quite different than some of the ideas that it prompts in my mind.  My guess is that Os Guinness' point is much more appropriate to the overall theme of his book than to anything I might add here by the use of that story, although there are some themes that might be common to both of our purposes.  But, it is important to know the times, and what we should do.  That is important for all of us, but if we are going to advance the cause of civil society, it is especially important.

Nevertheless, too often when dealing with government legislation, administrative regulation, or executive fiat, there are no "whys."  Theoretically, in the case of judicial review and/or litigation, the rationale for the decision of a court may be explained.  Similarly, when a tax related issue, such as the tax exempt status of an organization, or the deductability of a gift, is determined, there may be some answer to the why question.  But, too often, the actions of government authorities may seem arbitrary and contrary to reason or good policy.

One of our contemporary obsessions to "know in order to predict in order to control" may lead to information junkies, web-surfing, trivial pursuit players, and naval gazing trendspotters.  And, isn't it true that much of what we have available through our technology, new media, and the like leads us in this direction; where we have the world at our fingertips.  There never seems to be a place for a "why."

Rather than "I think, therefore I am," of René Descarte, we have "iPhone, therefore iAm," of Steve Jobs.  Well, maybe not really.  But, today, our electronic and digital equipment have redefined how we think and communicate with others, and how we access the world of information.  Many people now locate self-discovery and human knowledge, not in their own thinking, but in the smartphone.  It is at this point that the question arises as to how both the digital sector should be regulated, if at all, by government, and how the third sector should be regulated by government, if at all, in the context of the digital age with all the new media capability.

Moreover, as Steve Jobs is reported to have said, "You can't just ask customers what they want, and then give it to them.  By the time you get it built, they will want something new."    While people may want freedom to make their economic choices, including their giving to charity, and civil society organizations want the freedom to fulfill their purposes, whether charity, education, or advocacy, without government interference through tax policy and regulation, whenever there is a scandal, or failure on the part of a nonprofit organization, or when there is a public outcry against self-dealing within the sector, including what may be regarded as excessive executive compensation, there are calls for government intervention and regulation of the sector.

But, as I was again reminded of various legislative and government sponsored initiatives in the area of nonprofit law, and of the recent death of Steve Jobs, and his visionary leadership, I thought of this story of Primo Levi.  I hope that these ideas will emerge over the next few posts, and here in particular.  You see, the challenge is knowing the moment.  Not only is this important in considering the role of government vis a vis civil society, but also by making sense of our situation by reading the signs  of the times and assessing the significance of the moment.

One of those signs is government budget cuts due to soaring deficits.  This not only affects charitable organizations which have over the years relied on government funding, and have not built of their own constituencies of private funding.  Indeed, as I have written before, both the government funding of civil society organizations and their programs, and the withdrawal of that funding raise questions in my mind as to the very nature of civil society and its role in society.

But, it also affects government policy regarding taxes.  Thus, in the United States, the present administration is proposing the elimination or reduction of tax deductibility for gifts to tax exempt organization based on certain income levels of the donors.  To the extent that tax policy serves as a motivating factor for giving, and the amount of giving, reducing the tax consequences of donations from higher income donors could affect the ability of NPOs to carry out the purposes for which they were established, often at a time when government is cutting back on its own provision of social services and funding to independent charitable organizations that are meeting some of those needs for social services.

Changes in tax laws also affect what organizations may be entitled to tax exempt status and the effect that has on the donor public that may also seek to have its gifts treated as tax deductible.  For example, a recent decision (1 December 2010) by the High Court of Australia seemed to prompt this very discussion.  In Aid/Watch Incorporated v. Commissioner of Taxation, the question was whether or not Aid/Watch was a "charitable institution" for the purposes of Australian tax exemptions and concessions.

Aid/Watch had been incorporated in 1993 pursuant to the Associations Incorporation Act of 1984 and endorsed as a "charitable institution"  and thus exempt from income tax liability, as well as for other purposes under other laws.  Aid/Watch was an organization concerned with promoting the effectiveness of Australian and multinational aid provided in foreign countries, by means which included investment programs, projects, and policies.  It researched, in partnership with people that were recipients  of the aid and nongovernmental organizations, and brought to light through publicly released reports, and campaigns to change the way aid was delivered.

The Commissioner of Taxation revoked these endorsements in October 2006, and affirmed the revocations in March 2007.   The Administrative Appeals Tribunal set aside the decision of the Commissioner and determined that Aid/Watch was a "charitable institution."  On appeal by the Commissioner, the Full Court of the Federal Court set aside the earlier decision and affirmed the decision  and objection of the Commissioner. Aid/Watch appealed to the High Court.

The definition of charity in Australia was largely derived from English common law, and specifically from the Statute of Elizabeth (1601) "An Acte to redresse the Misemployment of Landes Goodes and Stockes of Money heretofore given to Charitable Uses."  But first, some context.
     Medieval England, combining Christian ideals, Roman precedents, and Common Law, permitted charitable donors to entrust property -- usually to the church or other public authorities -- for charitable purposes.  These endowments were part of a complex of activities involving the Crown, noble families, the church, municipal bodies, gilds, and other essentially public entities through which poverty, dependency, and other needs were attended to.
* * *
     Few laws are more important -- or more misunderstood -- than Elizabeth's 1601 Statute of Charitable Uses.  The preamble to the Statute sets forth the purposes for which property might be set aside for charitable purposes and, at the same time, provides a rich overview of the range of philanthropy in Elizabethan England.
Examining the Statute of Elizabeth and the precedent established over the centuries in England, US, Canada, and Australia since, the High Court of Australia noted that there were four principal divisions for charitable trusts, namely, trusts for the relief of poverty, for the advancement of education, for the advancement or religion, and for other purposes beneficial to the community (perhaps best expressed by the word, "eleemosynary").

Although the High Court noted that:
[A] a trust with a principal purpose to procure a reversal of government policy, or of particular administration decisions of government authorities, is proscribed as a trust for "political purposes"; this is so whether the government is that in England or elsewhere.  Such trusts, even if otherwise within the spirit and intendment of the preamble to the Elizabethan statute, can never be regarded as being for the public benefit in the sense require for a charitable trust.
It held that the system of law that applied in Australia applied to Aid/Watch and that the activities of Aid/Watch met two characteristics indicative of charitable status.  Moreover, although there was, in the law, an exclusion of "political objects" as charitable, the purposes and activities of Aid/Watch did not fall within any area of disqualification "for reasons of contrariety between the established system of government and the general public welfare."  Accordingly, Aid/Watch was held to be a charitable institution within thee meaning of the relevant legislation.

As Ludwig von Mises wrote, "The funds that a government spends for whatever purposes are levied by taxation."  Moreover, the very existence of the state suggests that there is also growth of the state.  "As long as many people want government to use its power to tax and regulate to benefit them at the expense of others," the state "will retain its power and continue to grow."

Rulers, being human, have wants they wish to fulfill, things like doing good as they see it, power, glory, money, pride, respect, adulation, security of or in office, aiding the poor (or rich), ending capitalism, spreading democracy, and the like.  Tax increases allow rulers to gain from them as long as the cost in votes is not excessive.  Further, taxation provides incentivees to institute programs that ultimately distribute wealth and create dependency.  These ideas cut across both the role and vitality of the civil society sector, and particularly, with regard to the purposeful choice in the realm of voluntary behavior to improve life, and similarly, with regard to the purposeful choices of individuals in both their voluntary behavior to improve life and voluntary contributions to causes they believe will improve life and the physical and spiritual welfare of people.

There are also attempts by the government to regulate the entire sector through registration and other regulatory examples.  Such has been the case in Cambodia, for example.  But, while we may think of this story somewhat extreme, is the position of Cambodia for its reasons much different than the position of the Australian Commissioner of Taxation for his reasons, namely the limitation of some kind of benefit conferred by government on certain types of NGOs?

Prior to its Annual General Membership Meeting in Zurich, Switzerland, The Cooperation Committee for Cambodia (CCC) asked ICFO to join in a joint statement in opposition to the Cambodian draft Law on Associations and Non-Government Organizations.  The membership of ICFO agreed and joined others in the statement prepared largely by NGOs operating in Cambodia, and supported by a legal analysis prepared by International Center for Not-for-Profit Law (ICNL).

I suppose that there are any number of countries that have, or are in the process of establishing laws that, in some way, attempt to provide for a government based regulatory scheme for the third sector.  Nevertheless, over the past two years, it is the Cambodian draft Law on Associations and Non-Governmental Organizations that has attracted international attention and pressure to change.  First, some history and context to the debate.

ICNL, in its report on Cambodia and the third draft of the Law on Associations and Non-Governmental Organizations, noted in its Introduction that:
Cambodia is an example of a post-conflict society in which traditional forms of civil society organizations (CSOs) were devastated and then re-emerged in new forms as part of the reconstruction process.  CSOs include Buddhist institutions, trade unions, media associations and non-governmental organizations (NGOs).  In 1989 the first humanitarian international NGOs (INGOs) arrived and the establishment of local NGOs soon followed.
The Royal Government of Cambodia (RCG) and development partners recognize that NGOs and INGOs have made an important contribution to rehabilitation, reconstructions and development in the past 30 years.  NGOs are view as important partners in the delivery of basic social services.  Formally the RCG has a number of mechanisms that involve NGOs in national development strategy formulation and policy implementation and dialogue.  In practice, however, NGOs have limited influence on government strategy and policy and limited space for dialogue.
 Beyond the service provision sphere, the environment for NGOs is very different.  NGOs involved in advocacy, legal rights and human rights are seen by the RCG as unwanted opposition and the environment for their activity is restrictive.  The power of the Cambodian People's Party (CPP) is increasing and the Cambodian State is becoming increasingly authoritarian.  There is widespread concern from NGOs and other stakeholders on key issues relating to the increased violation of land rights and restriction of fundamental human rights, such as the freedom of expression and freedom of assembly.  Human rights defenders are continually the target of threats and attacks.  The recent UN UPR's [Universal Periodic Review] submission and outcomes document this.
The legal framework in Cambodia has been governed by the Constitution.  There have been no specific implementing laws, although there have been different registration requirements for INGOs and for local NGOs.  In the case of the former, registration included the requirement to conclude a Memorandum of Understanding with the Ministry of Foreign Affairs.  In the case of the latter, they were required to register with the Ministry of Interior.  As stated by ICNR, the current legal framework was open to discretion and its implementation "saddled by a weak understanding of the concept of civil society."  This latter subject has been a matter of substantial interest and concern on my part as reflected in a number of earlier posts.

In June 1995, the Council of Ministers of Cambodia initiated the idea of a law that would provide for the regulation of NGOs and local associations.  The Council of Ministers assigned to the Ministry of Interior the responsibility for drafting such a law.  A year later, a draft text consisting of 10 chapters and 35 articles was ready, but its examination and consideration was suspended because of disagreements as to its content.

Five years later in September 2000, the Council of Ministers asked Prime Minister Hun Sen for advice.  However, he responded that he did not want to make it a priority and preferred to enforce a text that regulated the procedure for creation of NGOs and local associations, without defining their activities and role. Five years later, there were two laws, one dealing with terrorism and the other with money laundering.  The Ministry of Interior, together with other Ministries, the World Bank, and representatives of Civil Society.

Sieng Lapresse, the Undersecretary of State, Ministry of Interior of the Kingdom of Cambodia reported in 2008 that:
Thirty-five NGOs agreed on the principle of a law, but asked for some time to examine the text. However, a few NGOs like ADHOC, LICADO, and the Cambodian Centre for Human Rights strongly disagreed and estimated that such a text could impose high pressure on them and hinder their freedom.  Their reaction caused the suspension of the examinatrion of the text by the World Bank and the dossier is still dragging on today.
NGOs, some of which have been active in Cambodia for over 15 years, were worried that the draft law's true purpose might limit their scope of activity and independence.  They also did not see why the draft law was so suddenly a priority for adoption when there were other laws, such as the anti-corruption bill, still on the waiting list for approval by the Council of Ministers.

According to a press communiqué issued on 3 December 2008 by the Cambodian Human Rights Action Committee (CHRAC), a coalition of 21 NGO members, there were enough legal frameworks controlling the work of NGOs, whether it be the Constitution of Cambodia, the UNTAC transitional law or the Prakas issued by the Minister of Interior concerning the registration of NGOs, to which the new codes of civil procedure have been added.


NGO representatives also feared that the government might control the funding they received, which would allow ministers and high ranking official to put pressure on their work.
We heard that the funding would have to come first via the Ministry of Economy.  If that is the case, our work will be neither efficient, nor independent.  Also, it will be difficult for us to pay our employees on time, and this is without mentioning problems of corruption within the Ministry.
Moreover, according to Ou Virak, president of the Cambodian Centre for Human Rights (CCHR),

Another sensitive topic: according to the lines of the draft law, associations and NGOs must not lead any activity serving the interests of political parties or bring in means intended to support them financially or morally.  "If this point is approved, then my NGO will have to close down, because we will not be able to talk politics.  The thing is, we work on the question of Human rights, and it is in direct connection with politics.  This also means that we will not be able to shake the hands of politicians either.
In June 2009, the Cambodian League for the Promotion and Defense of Human Rights (LICADHO) issued a briefing paper, the subject of which was: Is an NGO Law in Cambodia Justified?  Although there appeared to be some government justification for such a law on the basis of alleged crime and terrorism, LICADHO concluded that there appeared to be "no need for additional legislation in order to prosecute terrorists and other criminals, the fear here is that terrorism was merely being used to push through an unwarranted law.

To make matters worse, the Prime Minister was quoted as saying: "Every NGO wants the government to have transparency but NGOs themselves don't have transparency.  Which source does the money come from"  What and where do they spend the money to?"

Noting a number of other quotes from government officials that are critical of NGOs, LICADHO stated that Cambodian authorities have failed to justify the NGO law on the grounds of security or anti-corruption, and that "These quotes provide a clear indication of the government's true motivation in passing an NGO Law: nothing to do with crime, terrorism or transparency, but everything to do with political control."

In order to understand what is happening now in Cambodia, it is important to note that over the past years, several drafts of such a law have been proposed.  The first draft was released on 15 December 2010. The second draft was released by the Royal Government of Cambodia on 24 March 2011.   The translation of this draft was provided by the Office of High Commissioner for Human Rights (OHCHR) on which we relied in our review in ICFO and on which ICNL relied during its review.  The ICNL report is available for examination at: http://www.licadho-cambodia.org/reports/files/152JointstatementCommentsOnCambodian2ndDraftLaw-Eng.pdf

As noted by ICNL, the major issues in the second draft included: a registration process that would allow for the exercise of "unbounded government discretion," a reduced by high minimum membership for associations, the limitation of eligible founding members for both associations and NGOs to Cambodian nationals, inadequate standards to guide government determination of suspension or termination of an association or NGO, barriers to the registration and activities for foreign NGOs, and constraints on associations and NGOs through notification and reporting requirements.

Inasmuch as the Royal Kingdom of Cambodia has withdrawn the second draft, and released a third draft of the proposed law, no further comment or analysis is required here.  Suffice it to say, this third draft has not been received with unalloyed enthusiasm either.  But, more later about it in the next post.

For now, it is sufficient to observe that the issues at stake in Cambodia are far wider than any single incident, person, proposed law, or country.  Notwithstanding the protests and gatherings, such as "Occupying New York," representative democracy and market capitalism seem to be riding quite high in much of the world, an urgent question persists not only for Cambodia, but for all of us: Is the cultural order of our societies -- the world of families, churches and synagogues, or Buddhist temples, schools, colleges, the media, entertainment -- doing a good job of cultivating free, responsible citizens.  Or, as Os Guinness wrote, are we seeing not only corruption at vital points, but widespread compliance with that corruption that makes all of us accomplices to our own decline?

It seems appropriate also to recognize the Cooperation Committee of Cambodia (CCC).  In its partnership with national and international CSO networks, CCC brought the case of the unintended development impacts of the draft law on Associations of Non-Government Organizations for global attention and scrutiny.  These efforts have made the government of Cambodia rethink and further revise the draft controversial legislation.

First, the vision of CCC is a strong and capable civil society, cooperating and responsive to Cambodia's development challenges.  Its mission is to be a professional organization of non-government organizations in Cambodia providing for high quality services to civil society and influencing Cambodia's development partners with a collective voice.

Thanks to the global CSO solidarity spirit and the collective efforts to preserve and maintain much needed democratic space to function and exist to serve the poor and vulnerable people,efforts continue to encourage the government to take less restrictive measures to regulate the sector.  While much attention has been give to the developments regarding the Law on Associations and Non-Government Organizations, ICFO pledged its support to the call for further review of the proposed legislation.  Another common belief shared by both ICFO and CCC is our strong belief in the need for CSO good governance.  ICFO highly credits the work of CCC in developing a Code of Ethical Principles and Minimum Standards of professionalism, integrity, and accountability.  The Code aims to maintain and enhance standards of good organizational practice and to ensure the public trust in the integrity of individuals and organizations that make up the NGO sector.

In order to accomplish these goals, CCC provides training and Open Forums for CSO Development Effectiveness.  However, its activities go beyond this. CCC is a membership organization that includes within its membership criteria, a monitoring scheme with appropriate certification which reflects the organization's successful completion of CCC's review of its documentation and compliance with the Code of Ethical Principles and Minimum Standards.

One may wonder why the Kingdom of Cambodia believes that there is a need for a law, such as the draft Law on Associations and Non-Government Organizations.  Although the Prime Minister asserted that "Every NGO wants the government to have transparency but NGOs themselves don't have transparency," it appears that what is promoted by CCC is much more significant than what might result from the legislative process.  Moreover, the danger appears to be stated by the National Assembly President: "Today, so many NGOs are speaking too freely and do things without a framework.  When we have a law, we will direct them."  This appears to be a misunderstanding of the concept of civil society.  

Perhaps, the power to regulate may indeed be the power to destroy.  And in Cambodia, with a growing and increasingly vibrant NGO sector, and an effective and significant self-regulatory or independent monitoring scheme, such as provided by CCC, one might wonder why a government would seek to exercise that power to regulate, and ultimately destroy.  Perhaps one could explain this to the German-funded Sahmakum Teang Tnaut (STT), the NGO advocating for the urban poor, which for six years provided services and advice to urban communities.

As The Wall Street Journal reported on 20 September 2011,
The government is responding with criticisms and threats of its own, often targeted at Western aid givers.
 Last year, officials in Phnom Penh threatened to expell the UN's country head and later warned all embassies and diplomatic missions not to try to "criticize or give lessons" to the Cambodian government.  A visit by UN secretary general Ban Ki-moon proved disastrous, as Prime Minister Hun Sen threatened during a meeting to close the UN's local human rights office and prematurely shutter Phnom Penh's UN-backed war crimes tribunal, according to Cambodia's foreign minister.
As tension rise, both internationally and domestically, between governments, and between the CSO, NGOs, and INGOs and the Government of Cambodia, maybe the citizens and sector are discovering, like Primo Levi, that there is no "why" there.

In the meantime, as the debates concerning the Law on Associations and Non-Government Organizations continue, Cambodia worries about long-term flood fallout. Flooding has spread across 17 of Cambodia's 24 provinces, killing 247 people as of 17 October 2011, and forcing the evacuation of 34,000 households.  It has destroyed more than 200,000 hectors of rice fields which is nearly 10 percent of the country's harvest.  The flooding has destroyed more than 1000 schools and some 2,400 km of roads, exceeding the devastating floods of 2000.