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 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.
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."
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.
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.
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.
"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.
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.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.
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.