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 NGO  Committee

    

 

 

Thun Saray

ADHOC

President

 

 

 

Carol  Strickler

CCC

Executive Director

 

 

 

Koul Panha

COMFREL

Executive Director

CHRAC

 

 

 

Secretariat

CHRAC

 

 

Chea Vannath

CSD

President

 

 

 

Ros Sopheap

GAD/C

Executive Director

 

 

 

NGOs welcome the ongoing discussions and coordination between the government and donors regarding Cambodia’s development.  The jointly agreed indicators originating from last December’s Consultative Group meeting provide a useful and crucial framework for ongoing cooperation and progress in meeting Cambodia’s development needs.

 

NGOs remain concerned, as noted in the NGO statements from June and September, that progress on the reforms has been slow and that many of the indicators have not yet been met.  Most of the existing indicators will need to be maintained in 2006.

 

This statement summarizes NGOs views and recommendations with regard to progress to date on seven important categories of the joint monitoring indicators and provides some suggestions on how the indicators may be updated in the year to come.

 

NGOs most appreciate this opportunity to contribute to discussions on the reform process and the monitoring of the jointly agreed indicators.  Through contributing to this process, and through their activities at all levels, NGOs hope to contribute to the Royal Government’s poverty reduction and development goals, and to strengthen their partnership with all stakeholders in the development process.

 

(1) Fighting Corruption and Increasing Accountability

Indicator 1:  Within the existing criminal law, reported cases of corruption shall be brought before the courts for investigation and hearing; a consistent and strategic approach shall be employed by law enforcement authorities to the prosecution of cases of corruption. Data shall be collected to enable monitoring of progress.

As mentioned in the NGO’s June statement, the Ministry of National Assembly and Senate Relations and Inspection (MoNASRI) reported the identification of possible corruption amounting to more than US$26 million. There is still a need to bring such cases to court, as part of “a consistent and strategic approach” to prosecuting corruption cases.   NGOs welcome recent moves to bring before the courts government officials involved in illegal logging in Virachey National Park.  NGOs also welcome the government’s resolve to tackle corruption within the courts, but remain concerned that the way in which this has been done has affected the independence of the judiciary, as explained below in the section of Legal and Judicial Reform. 

NGOs would like to suggest that, in order to develop a consistent and strategic approach, funds from the national budget need to be allocated to anti-corruption efforts.

Indicator 2:  The existing draft law on anti-corruption shall be brought into compliance with international best practice (such as reflected in the United Nations Convention against Corruption) and enacted.

NGOs note that no progress has been made in the improvement of the draft Law on Anti-Corruption, since the last workshop in August, despite comments made by civil society organizations and international experts, and strongly urge that further commitment by the Government is needed to make this law meet international standards.  NGOs still maintain their position with regard to the draft law, as stated earlier in the Statement of the Civil Society Organizations against Corruption, and presented in the last NGO Statement to the Government-Donor Coordination Committee Meeting, 15 September 2005.  These recommendations are repeated in Appendix Three of this statement.  NGOs would like to encourage government to carefully review the draft and incorporate into the draft, at least, the aforementioned recommendations.

Indicator 3: The Government should commence preparatory work on establishing a legislative framework (such as a Freedom of Information Law) to facilitate access to information held by public authorities. In the meantime, public authorities must change current practice by displaying a preparedness to share information with the general public and with other institutions in Government. The different TWGs will monitor specific indicators of access to information (see Annex for examples).

 

Pung Chiv Kek

LICADHO

President

 

 

 

Sin Somuny

MEDICAM

Executive Director  

 

 

Secretariat

NEP  

 

 

Russell Peterson

NGO Forum

Representative  

 

 

Kurt A. MacLeod

Pact

CR/Asia Regional Director  

 

 

Nhek Sarin

Star Kampuchea

Executive Director

 

There has been no progress on the drafting of a Freedom of Information Law, nor has the Government assigned a responsible agency to start to prepare this law. There has been so far only rhetoric by certain government officials on the importance of such a law but no clear sign of moving ahead with actions.

In order to ensure accountability in the reform process, we strongly appeal for a government technical working group to be urgently established to draft a Freedom of Information Law to ensure access to information, and this law must be passed as quickly as possible. Contrary to ensuring transparency and free access to information, the Parliament adopted the Archive Law without any consultation with civil society. Preparation of an Archive Law was not a CG-endorsed indicator, and it has raised serious concerns from civil society because the Law includes several provisions which appear to contradict the CG indicators for "Fighting Corruption and Increasing Accountability” because, among other things, it reverses the presumption that all public information should be freely accessible.

A significant indicator of “preparedness to share information with the general public and with other institutions in Government” is Indicator 3 under Agriculture and Natural Resource Management.  To date, release of information has been slow, despite high-level meetings between the Prime Minister and donors on the subject.

On a more positive note, recently, the Ministry of Environment has been sharing information and requesting comments from NGOs on S/EIAs[1] submitted by companies for mining and tourism concessions.  Such transparency has allowed NGOs to share their expertise on environmental issues and knowledge of local conditions which, if taken into account, may be valuable contributions to government decision-making. 

 · NGOs recommend that the above three indicators be maintained in 2006.

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(2) Legal and Judicial Reform and Protection of Human Rights

Indicator:  In all benchmarks listed below, the law shall be consistent with the Constitution and international best practice (such as reflected in international human rights treaties, and by instruments such as the Basic Principles of the Judiciary and the Guidelines on the Role of Prosecutors) and prepared through a satisfactory participatory process.

Fundamental Legal Framework (new - but includes laws from previous unmet benchmarks)

Adoption of the drafts of the 8 fundamental laws by the Council of Ministers and submission to the National Assembly as a matter of urgency:

1. Penal Code

2. Code of Penal Procedures

3. Civil Code

4. Code of Civil Procedures

5. Organic Law on the Organization and Functioning of Courts

6. Law on the Amendment of the Supreme Council of Magistracy (reflecting transparency in appointment, promotion, transfer, remuneration and disciplining of judges and prosecutors, and ensuring the independence of Judges and Prosecutors) - rolled over

7. Law on the Status of Judges and Prosecutors - rolled over

8. Law on Anti-Corruption - rolled over

NGOs are disappointed to observe that the Government has failed to meet benchmarks regarding legal and judicial reform and protection of human rights as originally promised to be achieved by December 2005. 

The adoption of fundamental laws to protect the fundamental rights of individuals is a significant and a crucial part of legal and judicial reform. From this perspective, the Government pledged in December 2004 that the drafting of eight fundamental laws would be prioritized, as these laws were recognized by the Government and a number of donors to be crucial for strengthening the rule of law and independence of the judiciary, for reducing corruption and for eliminating impunity.

The slow process in adopting these eight laws demonstrates the weak commitment of the Government towards legal and judicial reform. For example, out of eight laws promised to be adopted by the end of 2005, only the Civil Procedure Code has been sent to the National Assembly for review. Three laws[2] are still at the Council of Ministers, and three more laws[3] are to be examined by the Council of Ministers in 2006.  Drafting of these laws has taken many years, resulting in a backlog of laws to pass through the Council of Ministers and National Assembly. A lack of high-level commitment to the legal reform process is clearly evident.  NGOs agree with donors that the government needs to produce a realistic and prioritized schedule for the consideration and adoption of these and other laws in the pipeline.

Of deepest concern is the stagnation in the drafting of the amended law on Organization of the Supreme Council of Magistracy. Without this strengthening of the Supreme Council of Magistracy no real reform of the judiciary can happen. In order to avoid political influence, the law on Statute of Magistrates and the amended law on Organization of the Supreme Council of Magistracy should be drafted and submitted directly to the Parliament by the Supreme Council of Magistracy.  In addition, the Criminal Procedure Code needs to be quickly adopted in time for the beginning of proceedings of the Khmer Rouge Tribunal.

NGOs have submitted recommendations on the Penal Code, Penal Procedure Code and Law on Anti-Corruption, the details of which are shown in the appendices of this statement. In brief:

Penal Code

A technical working group consisting of several NGOs made a number of recommendations to the Government for amendments, of which some of the most important recommendations include: to remove the crime of defamation; to remove the crime of insulting a civil servant or elected public figure (Art 4141-1); and to ensure that the hearing for a criminal case and the sentencing for the same case is heard separately. (See Appendix 1 for further details).

Penal Procedure Code

The NGO technical working group also made a number of recommendations to the Government on the Penal Procedures Code. The most important of these are: to include a separate chapter on the rights of the accused; the rules of evidence should cover all evidential matters; to put limitations on the appeal procedure; to include sanctions for breach of time limits; and to ensure a transparent information regime. (See Appendix 2 for further details).

Law on Anti-Corruption

As mentioned above, another working group of NGOs made several recommendations on the draft law. The most crucial recommendation was to call for the anti-corruption body to be truly independent, with independently elected staff and autonomy to investigate complaints. In addition, it recommended that adequate witness protection measures be ensured and that immunities to informers and witnesses be provided. Also, the Secretary-General should have the right to open the asset declarations of those suspected of being involved in corruption. (See Appendix 3 for further details).

Concluding remarks

We are seriously concerned about whether the Government has a genuine commitment to reforming the legal and judicial sector. Over this year we have seen very little progress made in this field. We believe that no meaningful legal and judicial reform can happen without a solid legal framework to work within. In a 2004 UN Human Rights Report, the Special Representative noted that "the past decade has seen the continuation of executive control over the judiciary".[4]  Indeed, this situation appears to continue. The judiciary has long been criticized for being a body which provides " ‘legal’ legitimacy to abuses of power, arbitrary decision-making, and exonerating those responsible for serious human rights violations".[5] While the government has been seen to take some action against corruption in the judiciary with the so-called “Iron Fist" approach, the implementation of this policy has appeared arbitrary, resulting in an even weaker judiciary that is afraid to use any discretion in applying the law. 

The current Secretariat of the Supreme Council of Magistracy has been effectively controlled by the Ministry of Justice. This is a breach of the principle of separation of powers. As previously mentioned, we request the adoption of a Law on the Amendment of the Supreme Council of Magistracy (SCM) which ensures that the SCM is established as a body truly independent of both the Legislative and Executive.  Therefore, the Amendment should provide for a change in the composition of the SCM, a separate secretariat, and clear procedures for responding to complaints.

We note that, while the Government has been actively working at the technical level, planning the strategy for legal and judicial reform, and attempting to coordinate its Ministries to carry out reforms, there has been very little action taken at the highest, decision-making levels. So until we see political decisions for real reforms being made at the highest levels, we conclude that very little real progress, if any, will be made.

· NGOs recommend that the above indicator be maintained in 2006.

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(3) Decentralisation & Deconcentration (D&D)

Indicator 1: The RGC National Policies, Strategic Framework, Action Plan and relevant appointed committees formulated by March 2005 and submitted to Council of Ministers for approval, resulting in a Government program for D&D at a Provincial, District and Commune Level.

Indicator 2: The first draft prepared for consultation of the D&D Organic Laws on the Management of Provincial & District, Municipalities and the Capital, produced within the D&D strategic framework.

NGOs commend the timely approval of the Strategic Framework for Decentralization and Deconcentration Reforms in June 2005. NGOs understand that the Ministry of Interior is making progress on the draft Organic Law and related regulations to effectively translate the policy into practice. NGOs suggest the government should start discussion on the electoral system for provincial and district councils. NGOs strongly recommend that there be a transparent and consultative process in drafting the Organic Law and open discussion on the electoral system for selecting provincial and district councils with participation from all stakeholders. NGOs would like to see clear institutional frameworks in the Organic Law that allow for meaningful civil society and citizen participation in decision-making and accountability processes at the new levels of sub-national government structures.

NGOs continue to strongly appeal to the Ministry of Interior to review and modify the Guidelines to Support Commune Councils No. 010 GL, a directive dated June 24, 2005. Although the guideline is designed to increase cooperation and collaboration among all stakeholders, the guideline includes some points which civil society organizations believe are not in line with Articles 42, 43, 61 and 63 of the Sub-Decree on Decentralization of Powers, Roles and Duties to Commune/Sangkat Councils. Furthermore, reports from NGOs committed to developing positive partnerships with Commune Councils indicate that this Guideline has created unnecessary obstacles and inefficiencies in their support of the government’s Strategic Framework and other government strategies.  In the context of promoting decentralization and de-concentration, NGOs strongly recommend the Ministry of Interior to draft procedures for village chief selection.  The selection of village chief is required by Article 30 of the Law on Commune/Sangkat Administration and by point No 15 of the government’s policy platform, which urgently suggests “the selection of village chief, deputy village chief and village members as soon as possible in accordance with the principle of commune /sangkat decentralization in 2005”. 

We would like to propose that government consider holding a consultative meeting with NGOs and other stakeholders that will result in a revised Guideline and draft procedure for village chief selection more in line with the Strategic Framework, the Law on Commune/Sangkat Administration and decentralization principles.

NGOs continue to stress the need for commune/sangkat council election reform in order to increase commune/sangkat council accountability, to protect the rights of local people, and to increase gender equity among local electoral representatives. The electoral system should be amended to allow independent lists of local people whose members are not from any political party. The lists should have the required number of candidates for each sangkat or commune.

NGOs also stress the need for affirmative action measures in the decentralization and deconcentration laws to allow greater women’s participation at the commune and provincial level. More specifically, we would like to see the government succeed in reaching their Millennium Development Goal No. 3, by reaching 15% of women commune counselors by 2010, which effectively means reaching this figure in the next commune election in early 2007. The government has set a fixed target, but what is lacking is a special program to propel women to be on the ballot papers and on the actual elected councils in 2007.

Finally, NGOs commend the openness of the Royal Government of Cambodia to increasingly view nongovernmental organizations as an integral part in the decentralization and deconcentration process. With this in mind, NGOs recommend to the Royal Government of Cambodia to ensure a supportive environment for NGOs in fulfilling its role in the D&D reform process.

· NGOs recommend that the above indicators be updated in 2006 to include a measure of participation in policy processes, affirmative action for women’s participation at the commune and provincial levels, and the removal of unnecessary obstacles to the efficient functioning of commune/sangkat councils.

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(4) Cross-cutting Indicators for Agriculture and Natural Resources Management

There has been only minimal progress on the cross-cutting indicators for agriculture and natural resource management.  Renewed commitment to these indicators will be needed in 2006.  NGOs suggest that the existing indicators be rolled over, but with significant amendments.  NGO suggestions for new indicators for agriculture and natural resources management are provided in Appendix 4.

Indicator 1:  Pass/enact key laws and sub decrees, governing natural resources management, including fisheries law and community fisheries sub decree (rollover), state land management and economic land concessions sub decrees and enforcement of Article 18 of Land Law, that private sales transactions on state lands are illegal and hence should not be validated by officials.  Joint development of a medium term sector strategy for agriculture, including irrigated agriculture, has been commenced by March 2005, with an overall policy and strategic framework completed by December 2005.

A Sub-Decree on State Land Management was recently passed by the Council of Ministers.  The Sub-Decree on Economic Land Concessions is currently under discussion at the Council of Ministers, but to the best knowledge of NGOs has not yet been passed.  The Draft Fisheries Law has been sent to the National Assembly and is waiting endorsement.

Attempts to enforce Article 18 of the Land Law have failed to provide protection of state land, especially land eligible for registration as indigenous collective property. The informal land market on state land is expanding despite the risk that sales transactions will not be validated. There is moreover an underlying assumption that illegal transactions of state land might be legitimized in future once they become too complex to be solved.

A terms of reference (TOR) has recently been drafted to prepare an Agriculture and Water Resources Strategy, and it is proposed that the Strategy would be prepared by June 2006, and the sector program framework by December 2006.  The draft TOR indicates that the strategy will focus, in part, on production of high yielding rice varieties for export.  Rather than focusing on increasing production through methods requiring costly inputs, NGOs would like to see a strategy that focuses on increasing the incomes and food security of small farmers.  NGOs would like to see the strategy focus on low-input methods of increasing rice production through improved rice cultivation management practices such as the system of rice intensification (SRI), and on promoting organic farm products as a niche export market. 

Indicator 2:  Maintain suspension/moratorium on logging, transport of logs (except those which have been already inventoried and for which royalties have been paid in full), and new economic land concessions pending completion of applicable review processes and/or a legal framework.

Large numbers of old logs, many of them illegally harvested, have been transported since the start of the year.  This has created ambiguity regarding the legality of log transports around the country which stands to benefit illegal loggers. NGOs call on the government to announce publicly that these licensed transports have ceased.  NGOs also urge the government to publish disaggregated details of royalty payments by the companies which have transported the logs.

Illegal logging activities continue in various parts of the country.  For example, in Tumring, Kompong Thom province, there has been illegal logging of resin trees outside concession boundaries.  Resin trees are important source of local community income.

Despite the moratorium on new economic land concessions and the Prime Minister’s Order No. 02 BB, it appears that the government is entering into new concession agreements.  For example, in Stung Treng province, two adjacent concessions, Sal Sophea and Sopheak Nika have recently been awarded, and another two, Phumadi and Siv Gek are planned.  These concessions encroach on or completely envelop local communities.  The concessions are situated on land which has potential for illegal forest conversion. 

NGOs continue to be concerned that Circular No. 05 SRNrN on Granting Economic Land Concessions, issued by the Prime Minister on July 1, 2005 contradicts Order No. 02 BB by making exceptions to the requirement that no new Economic Land Concessions should be granted before the relevant Sub-Decree has been passed.  NGOs would like to see this inconsistency corrected.

Indicator 3:  Increase transparency of state management of natural resources through immediate public disclosure of existing contracts and compliance status (royalties and other key provisions) of contracts governing economic land concessions, mining concessions, fishing lots and continued disclosure of status of review of forest concessions.

At the time of writing, NGOs and donors are still awaiting disclosure of information pertaining to economic land concessions, despite a detailed agreement to make such information available reached by donors and the Prime Minister in June.  The information on land concessions disclosed in September was extremely limited and merely an incomplete update of a list first made available to the UN over two years ago.  NGOs welcome the recent announcement of the Ministry of Agriculture, Forestry and Fisheries that they are planning to soon release further information on economic concessions.  If forthcoming, this will be a welcome first step in improving transparency in the management of land and natural resources in Cambodia. 

NGOs note that the agreement mentioned above referred only to economic land concessions, whereas Indicator 3 above also refers to mining concessions and fishing lots.  Indicator 5 below also requires disclosure of information pertaining to military development zones. It is essential to the national development agenda that all the information slated for disclosure in the CG indicators be made available, both to the government's development partners, and to the public.

With regards to logging concessions, NGOs are aware that the World Bank has written to the government recommending that none of the concession companies be allowed to continue operating.  NGOs are in agreement with the Bank’s position and urge the government to cancel the remaining concessionaires and proceed with the expansion of alternative management systems.  NGOs support the findings of the 2004 Independent Forest Sector review commissioned by the government and international donors as a basis for such new management systems and would welcome the opportunity to cooperate with the government in their development. 

NGOs welcome the government’s decision set out in the Rectangular Strategy to orient forest management towards domestic supply rather than export.  NGOs strongly advise against the allocation of any annual coupes unless they are granted within the framework of a revised system of forest management oriented towards meeting the needs of local communities and conserving Cambodia’s watersheds and biodiversity.  The recent non-transparent allocation of an annual coupe in Ratanakiri should not be allowed to become a precedent for the future planning and contracting of commercial harvesting operations.

In the event that the government does consider permitting small-scale commercial harvesting, NGOs recommend that these operations are required to meet the standards set out in the 1999 Sub-decree on Forest Concession Management.  NGOs also recommend that all forestry and plantation operations in future should follow Forest Stewardship Council (FSC) standards, with broad involvement of and consultation with affected communities, in line with international best practice. 

Illegal logging continues in most forested areas of the country and is particularly rampant in Kompong Thom where former subcontractors of logging concessionaires have established an illegal sawmill in the Tumring rubber plantation.  NGOs are particularly concerned at the ensuing violence against local people, notably the attempt to shoot two community forestry activists in July this year.  We urge the government to arrest and prosecute those responsible without further delay.

The continuation of illegal logging calls for the strengthening of independent forest monitoring and the appointment of an agency capable of implementing this role.  NGOs note that current arrangements have largely failed to provide credible monitoring of the forest sector.  Its reluctance to address corruption and the role of powerful interests in illegal logging has contributed to a distorted picture of the problems currently facing Cambodia’s forest sector.   NGOs would be willing to assist in efforts to revise the current monitoring framework. 

Indicator 4:  Application of sustainable management planning, including ESIAs, investor evaluations, consultation with local communities, public disclosure and comment period prior to entering into new contracts for private use/management of state managed natural resources (land, fisheries, forestry, and mines).

This indicator continues to be largely unmet. Land concessions continue to be awarded, usually with no signs of sustainable management planning, and at best with EIAs commencing after contracts are awarded.  The NGO Statement in September detailed NGOs concerns regarding the Wuzhishan concession in Mondulkiri for which no EIA was carried out with consequent negative impacts for the local population.  With regard to the two recently awarded land concessions in Stung Treng Province, it appears that EIAs are now under way.  In Preah Vihear, the Sui Gadn company is proposing a 66,000 hectare concession for a rubber plantation, which exceeds the maximum size of 10,000 hectares allowed by the Land Law.  Such developments are certain to have huge impacts on local communities whose livelihoods depend on access to natural resources in these areas.

As stated in the previous NGO Statement, NGOs recommend that the RGC reconsider its development policies vis-à-vis the granting of large agro-industrial economic land concessions to private companies.  Despite having a relatively small population of just over 13 million and a substantial amount of arable land, the draft National Strategic Development Plan and other studies estimate that there may be around 12% of the rural population without agricultural land. Therefore, NGOs again urge the Government to cease granting large agro-industrial land concessions to private companies, and to improve the livelihoods of landless rural people through the granting of social land concessions for family farming.

Indicator 5:  RGC disclose the location and legal status and process for termination of mining concessions, Military Development Zones, economic land concession and other development arrangements situated on forest land or in protected areas and inconsistent with law governing management of these areas.

There has been no progress towards achieving this indicator, and no disclosure of information has taken place.  In addition, further such concessions continue to be considered.  One concession currently under consideration is a lead and zinc mine to be located in the Aural Wildlife Sanctuary, which has potential to pollute important waterways including the water supply for Kompong Speu.  Large-scale tourist developments, with consequent environmental and social impacts, have been proposed for Ream National Park and the Aural Wildlife Sanctuary.  The latter is likely to have severe economic and cultural impacts on the local indigenous Suoy communities, whose land tenure is already under severe threat.

Similarly, the military development zone in Kompong Speu and the land concessions situated within it are causing land alienation and serious social unrest.  In O Ya Dauw district, Ratanakiri, the efforts of a Vietnamese company, 30-4 Gialai, to obtain an economic land concession on a forested area within what is reportedly a military development zone again raises serious questions about the allocation of economic land concessions on forestland as well as the location of and rationale for the military development zones. 

· See Appendix 4 for NGO recommendations on Agricultural and NRM indicators for 2006

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(5) Gender, Poverty, and HIV/AIDS

Indicator 1: These will be treated as cross cutting issues to be addressed under the broader umbrella of formulating the next5 year National Strategic Development Plan (NSDP) for 2006-2010

NGOs have been pleased to observe government efforts to prepare the National Strategic Development Plan (NSDP), the draft of which provides a credible development agenda for the period 2006-2010.  In particular, NGOs are pleased to see that some of their most recently submitted comments have been included in the latest publicly available draft.  NGOs would nevertheless like to repeat their concerns expressed in the last NGO Statement that the process has been very rushed. The plan is insufficiently underpinned by new poverty or sectoral data, and largely fails to identify and target the poorest and most vulnerable groups within Cambodian society.

It is therefore pleasing to note that “extensive consultations will take place during January-April 2006 for preparation of sectoral plans and sub-national plans (provinces, districts and communes)” and that “Ideas and input from the process would get included in the first update of the NSDP to be ready by June 2006.” [6]

NGOs would like to suggest that the above-mentioned opportunity be used to:

As in previous year, NGOs welcome the proposed increased allocation to the social sectors in the 2006 draft national budget, in response to the requirements of the NSDP. NGOs believe that continued improvements in the predictability, timeliness, transparency and overall levels of budget disbursements may help to ensure the fruition of the NSDP’s goals and objectives.

Indicator 2: Gender Equality. Put in place the Legal Framework for Protection:

• Draft Domestic Violence Law is adopted by the Council of Ministers and submitted to the National Assembly and a Prevention Plan adopted.

• Draft Anti Trafficking Law is adopted by the Council of Ministers and submitted to the National Assembly and a Prevention Plan adopted.

The National Assembly and Senate have adopted the law on “The Prevention of Domestic Violence and the Protection of Victims”, and the King has now signed the Law into effect.  An Advisory Board has been working with different working groups to set up a National Action Plan for enforcement of the Law.  The Advisory Board met on 2nd November 2005 and discussed different aspects of the National Action Plan.

NGOs are pleased with the adoption of the law on “The Prevention of Domestic Violence and the Protection of Victims” although it does not consider all forms of domestic violence like marital rape as crime. However, NGOs believe that this Law will be a milestone achievement towards the establishment and promotion of women’s human rights in Cambodia. With enforcement of the Law, NGOs hope, women’s overall situation will be significantly advanced through their reduced vulnerability to violence. There are still many steps required to enable implementation of the Law, as the specific action plans are yet to be set-up. Those setting up the action plan will need to make sure that application of the law is responsive to local contexts and values without compromising women’s human rights.

There has been less progress on the Anti-Trafficking Law.  Most recently, the draft has been returned from the Council of Ministers to the Ministry of Women's Affairs for further development.  Further agreement on the draft needs to be found with the Ministry of Justice.  The Ministry of Women's Affairs and the Ministry of Justice, with support from The Asia Foundation, have set up a committee to discuss definitions of various terms used in the draft law.  NGOs welcome all attempts to resolve issues regarding the draft law and to expedite the process of its adoption.

· With the Domestic Violence Law now passed, the related joint monitoring indicator should focus on implementation.  The Anti-trafficking Law indicator may remain unchanged.  In addition NGOs suggest that the indicator call for existing cases of trafficking, where possible, to be brought to the courts under existing laws.

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(6) Health & Education

Indicator: Timely disbursements of the budget for Health and Education as agreed in the PFM Action Plan.

Health

In the third quarter of 2005, there was a remarkable improvement in the cash disbursement figures, in comparison to the first and second quarters of the year.  As of 31 October 2005, the cash disbursement to the provincial level is up to 46.44% of total budget, and at the central level is up to 47.91%. Although there are improvements in comparing to the past, the current pace of disbursement remains challenging because it is now coming into the forth quarter of the year, and still the cash to the operational level is less than 50% of the overall budget for 2005. Nevertheless, the improvement compared to last year and the government’s effort on this matter is very encouraging.

NGOs active in the health sector very much appreciate the government’s openness to allow key donors to participate in the cash management committee in order to closely monitor the cash flow, and would like to inform the government that NGOs are also most willing to contribute their time and energy to this committee if so invited. By permitting donors and NGO representatives to join together with the government, transparency is improved and the reform process may be accelerated. NGOs would very much welcome the opportunity to participate in the cash management committee.

Education

While information from the field suggests there has been some improvement in PAP disbursements in recent months, payments are still erratic, unreliable and very low both for 2004, and thus far for 2005. In particular questions have been raised about a significant amount of PAP funds left over from last year’s budget that has not been carried over. The Ministry of Economy and Finance (MoEF) has suggested that there will no longer be any carry over from year to year for PAP funds, which implies a net loss of PAP funding available for education for this year.

Delays in disbursements pose many challenges for schools, especially those in rural areas. Funding delays make it additionally difficult to plan and provide adequate educational services to students in these already disadvantaged areas and undermine the Ministry of Education Youth and Sports’ (MoEYS’) own goal of Equitable Access to Education Services. (ESP 2.1 - 2006-2010). 

At the Joint Technical Working Group on Education (JTWG-ED) in September 2005, it was noted that the Ministry of Health is beginning to phase out the use of PAP and will instead be using the regular budget process for funding under the new financial reforms. It has been suggested that the MoEYS may start doing the same in the future. It is difficult to predict the implications of such a policy change on future education disbursements.

While information about PAP disbursements is made available to members of the JTWG-ED, this information should also be available to other NGOs and to the public. This would ensure that the government’s stated goal of “transparency and accountability” is being actualized. The release of this information to the public would also aid in monitoring public expenditures, and promoting open dialogue between all education stakeholders.  

Recommendations:

Ø   Whichever disbursement modality is ultimately chosen, it is recommended that the MoEYS and MoH continue to work with the MoEF to improve the reliability and timeliness of disbursements, so that schools may receive the funding they need to realize the educational goals set out in the Education Strategic Plan (ESP) 2006-2010 and so that the objectives of the Health Strategic Plan may be achieved. Regarding indicators for 2006, we suggest that government and donors continue to monitor “Timely disbursements of the budget for Health and Education as agreed in the PFM Action Plan.” 

Ø  Also, to promote the MoEYS’ goal of transparency and accountability, the NEP requests that PAP disbursement data and information on disbursements be made available to NGOs and the wider public on a regular basis. This would promote dialogue between all stakeholders, which would serve to improve communication at all levels of the education system.  NGOs are pleased to note that the Ministry of Health is already releasing such information on a quarterly basis. We suggest that a suitable indicator for 2006 would be that “The MoEF, MoEYS and MoH make PAP disbursement data and information on disbursements available to all relevant stakeholders, including NGOs and the wider public, on a regular basis to improve transparency and efficiency, and to promote dialogue between all stakeholders in the sectors of education and health.” 

It is within the spirit of cooperation and commitment to positive reform in Cambodia that we make this statement, and it is our wish to continue working closely with the MoEYS and MoH to realize our common goals of quality education for all and MDG targets for both education and health.

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(7) Harmonization and Alignment

Indicator: Implement-and monitor implementation progress on a six monthly basis - the Harmonization Action Plan and the Partnership Principles.

NGOs commend the Royal Government of Cambodia and development partners for their commitment to and progress on the Harmonisation and Alignment (H&A) Action Plan in 2005. Recognition of the challenges by government institutions and donors in achieving such an ambitious plan are also noted. The NGO community’s knowledge of these important policies and plans however is still fairly limited, so opportunities to increase awareness of, contribute to and deepen understanding of the impact of these plans on Cambodia’s development, through government-donor-NGO dialogue, are most welcome.  NGOs recent involvement and participation in the Partnership and Harmonisation Technical Working Group has helped contribute to this process.

The Draft Strategic Framework for Development Cooperation Management currently being formulated by the Royal Government of Cambodia is a step forward to improving aid coordination and effectiveness through strengthening and aligning existing government systems. NGOs often receive confusing and conflicting messages from different government departments regarding their institutional arrangements, roles and relationships in the various development processes.  As such NGOs would welcome discussions that lead to greater clarity and predictability on specific government coordination mechanisms and information systems between line ministries, Ministry of Interior, Ministry of Foreign Affairs, Council for the Development of Cambodia, as well as sub-national level authorities in relation to NGO operations at all levels.    

· NGOs recommend that the above indicator be maintained in 2006.

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Appendix 1 - Recommendations for the draft Penal Code

The NGO Working Group on the draft Penal Code was initiated by the Cambodian Defenders Project (CDP) and included the following NGOs; the Cambodian Human Rights and Development Association (ADHOC), Legal Aid of Cambodia (LAC), Action Pour Les Enfants (APLE) and Mr. Koy Neam from the Asia Foundation (TAF). The Group met weekly from May to September 2004, and presented its comprehensive comments and recommendation for change to the Ministry of Justice in November 2004. Some main recommendations are as follows. 

  1. The crime of defamation should be removed

The Working Group recommended that the defamation be decriminalized. Currently, defamation is a crime under Art 63 of the Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period (UNTAC Law). This is used inappropriately to unfairly stifle freedom of expression of journalists and political opponents. The trend in many other countries has been for defamation to be decriminalized over time. Defamation suits can still be filed but they should be civil claims not criminal claims. This means that the penalty is not imprisonment but only monetary damages. A crime of defamation is potentially inconsistent with international human rights principles. Art. 19 of the International Covenant on Civil and Political Rights, to which Cambodia is a state party, clearly guarantees the freedom of expression, subject only to such restrictions which are "necessary". Having understood the commitment that the Government will respect internationally recognized rights of its citizens, the Working Group recommended that the defamation provisions be removed from the draft Penal Code and instead included as a civil action in the draft Civil Code.

  1. The crime of insulting a civil servant or elected public figure (Art 4141-1) should be removed

The Working Group also recommended Art. 4141-1 stating a crime to insult a civil servant or elected public figure should be removed. The reason is that this crime includes the potential to suppress the freedom of expression. The Working Group considered that public figures, by virtue of holding public office, should have a responsibility to confront open criticism and should be expected to provide evidence or explanations to counter criticism of any kind.

  1. The hearing on guilt/innocence and the hearing on sentence for the same case must be heard separately

Another key recommendation of the Working Group was that the hearing on the guilt or innocence of the person (the substance of the trial) and the hearing on the sentencing of the person must always be heard separately. The primary purpose of a trial is to ascertain whether an accused is guilty or not guilty of the crime for which s/he is charged. The question of sentence cannot be considered until it is known if an accused is guilty, of what crimes, and the reasons for the judge’s decision. Consideration of guilt/innocence and sentence is based on different arguments and legal criteria. Evidence that is relevant to the question of whether the accused is guilty may not be relevant to the question of penalty. Likewise, evidence that is not relevant to guilt may be extremely relevant to sentence. For example, previous convictions of the accused are not (or should not be) relevant to a judgment of whether or not the accused is guilty of the crime. However, once convicted, previous convictions are highly relevant to the assessment of penalty.

Both the prosecution and the defense risk compromising their case at trial if they raise sentencing arguments. If the prosecutor presents evidence about the previous convictions of the accused or the accused’s bad character, the defense may justifiably object that this evidence may prejudice the judge against the accused and does not help to prove that the accused committed the crime. The prosecutor may even be accused of violating the impartiality of the judge. On the other hand, if the defense raises the accused’s good character, the judge may think that the defense is admitting that the accused is guilty. For all these reasons, the Working Group recommended that the conviction hearing and the sentencing hearing should be held separately.

  1. A crime of encouraging a minor to smoke tobacco should be included

The Working Group recommended that one more new crime be added in the draft Penal Code. Art. 2315-8 of the draft includes a series of crimes for encouraging minors to commit certain illegal or dangerous acts. For example, it is a crime to encourage a minor to use drugs, drink alcohol or to beg for money. The Working Group recommended that encouraging a minor to smoke tobacco should be also criminalized. Smoking is harmful, especially for minors, therefore no one should encourage minors to start smoking.

  1. It should also be made a crime for either the birth mother or the intended parents to be willingly involved in commercial adoption or surrogacy arrangements

The draft Code makes it a crime for an intermediary to facilitate an adoption for financial profit by the intermediary. It is also a crime for an intermediary to facilitate a surrogacy arrangement between a birth mother and intended parents. The Working Group recommended that involvement in commercial adoption or surrogacy arrangements should also be a crime for the birth mother and the intended parents. If this recommendation is accepted, it will help in the fight against trafficking of children for adoption.

  1. Other recommendations included:

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Appendix 2 - Recommendations for the draft Penal Procedure Code

The NGO Working Group on the draft Criminal Procedure Code included ADHOC, CDP, LAC, the Cambodian League for the Promotion and Defense of Human Rights (LICADHO), Center for Social Development (CSD), Open Society Justice Initiative (OSJI), Cambodian Human Rights Action Committee (CHRAC) and The Asia Foundation (TAF). The Working Group met weekly. The Working Group sent its initial recommendations to the Royal Government in late October 2004 and then sent them formally to the Government again in November 2004.

  1. The structure for the criminal courts is too complicated therefore remove the investigating councils

The Working Group noted that the structure proposed in the draft for the criminal courts was too complicated. In particular, the proposed creation of “investigating councils” and “council in charge of criminal matters” in each court seemed unnecessary. It would be likely to be inefficient and waste time and resources. Therefore, the Working Group recommended that Investigating Councils were not necessary.

  1. A separate chapter on the rights of the accused should be included

The Working Group recommended that a separate chapter on the rights of the accused be included in the Code. All the rights of the accused should be explicitly stated, including the right of silence, the right to defense counsel, the right to a fair trial, the right to be presumed innocent. A separate chapter on the rights of someone accused of a crime will provide more protection for an accused and assist in ensuring a fair trial. In addition, for protecting the rights of the accused, the right of the defense counsel to cross-examine witnesses for the prosecution should be clearly stated because this principle is often ignored in Cambodian courts.

  1. The rules of evidence should be expanded to cover all evidential matters

The Working Group also recommended that the rules of evidence be expanded so that they cover all evidential matters. In particular, the Code of Criminal Procedure should set out what weight judges should give to particular evidence. For example, the Code should state that judges must give minimal weight to hearsay or unreliable evidence. Little weight should be given to confessions. Past convictions should not have any weight except in relation to sentencing.  Above all, the Code of Criminal Procedure should give clear guidance to judges as to the rules of evidence which they are expected to apply.

  1. The appeals procedure should be carefully considered

One of the major recommendations of the Working Group was that the Government should reconsider the procedure for appeals. In particular, the draft Code allows both the prosecution and the defense to appeal with no reasonable grounds and it seems to encourage appeals by the parties in situation where they are not satisfied with the sentence. Therefore, the Working Group recommended that appeals should be limited to where the judge has made an error of law or procedure, or has made such an unreasonable decision that no reasonable person could have made it.

  1. Sanctions for breach of time limits should be included

The Working Group recommended that sanctions for breach of time limits should be included in the Code. If the Code provides that certain actions need to be done within a certain time period, then it should also provide for sanctions for not complying with these time periods. If a judge, the police or a prosecutor does not comply with a time limit, there should be a sanction. For example, if an accused person is in detention and if the investigating judge does not complete his/her investigation within the required timeframe, the sanction should be that the accused is automatically released from detention and punishment should be imposed on the judge who is in charge of the case. If such sanctions are included then the Royal Government will need to ensure that the judicial system is properly resourced to enable it to comply with time limits.

  1. A transparent information regime should be inserted into the draft Code

The Working Group proposed insertion of a transparent information regime into the draft Code to facilitate access to the court system and judicial decisions. A transparent regime would include all court proceedings (including interrogations by the investigating judge) being recorded on audio tape and independently transcribed; dates and times of hearings being made publicly available well in advance of the hearing date; judgments being available at the court to be photocopied, and major judgments being available on the internet.

  1. Other recommendations of the Working Group included:

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Appendix 3 - Recommendations on the Law on Anti-Corruption 

After receiving on 8 August 2005 the draft Law on Anti-Corruption dated 30 June 2005, civil society organizations have analyzed and found that, though the current draft has more comprehensive corruption related offence provisions than the earlier draft with a clearer role to the Secretary General to enforce the law, and includes a Chapter on international cooperation, it is necessary that some more improvements be made to the draft to meet international standards as committed by the Royal Government during the CG meeting with international donors in December 2004.

Therefore, we, the Civil Society Organizations against Corruption, would like to make some recommendations and would like to ask that the government carefully review the draft and incorporate into the draft the following important items:

1-Independence of Anti-Corruption Body

The Law on Anti-Corruption (LAC) needs to specify a functionally independent Secretary General who manages the day-to-day work of the Anti-Corruption Body (ACB). The Secretary General reports to the Supreme National Council Against Corruption (SNCAC) that serves as the advisor to the Secretariat General. Because most of the members of the SNCAC will be appointed by the institutions that have political connections, it is necessary to have an independent Secretary General with autonomous power to manage investigations, prevention, and education against corruption.

a-Members of the SNCAC

· Two members of the SNCAC from the National Assembly and from the Senate shall be elected by a 2/3 majority vote.

· The ACB shall be a functionally independent executive authority with autonomous power to manage investigations, prevention, and education activities.

· There shall be a representative of the civil society organizations within the SNCAC. The representative shall be elected by the civil society organization, and the election procedure shall be developed in details by the Civil Society Organizations.

b-Secretary General

· The Secretary General shall be free from the political influence of the SNCAC. The Secretary General and Deputies Secretary General shall be selected from the list of candidates that are publicly advertised. The SNCAC shall make a shortlist of six candidates to be submitted to the National Assembly for approval of one Secretary General and two Deputies Secretary General through a 2/3 majority of vote.

· The Secretary General shall have the power to appoint and dismiss staff.

· Disbursal of funds to the ACB shall be carried out on a yearly basis to enable the ACB to perform its function effectively.

· Take out the sentence “[ACB] can receive necessary resources from the Government” stated in the 2nd paragraph of Article 31.

2-Investigative Power

Under Article 37 of the current draft law, the Secretary General, Deputies Secretary General, and investigators of the ACB need to be approved by the Prosecutor General. This requirement would seriously undermine the independence and operational autonomy of the Anti-Corruption Secretariat’s investigation powers. 

· The law shall accept the Secretary General, the Deputies Secretary General, and the investigators of all levels as judicial police with no need to be approved by the Prosecutor General.

· The ACB shall be given the authority to waiving bank secrecy law in article 39 and Article 73.

3-Witness Protection

The LAC shall include some measures to protect informers and witnesses in order to encourage participation in the fight against corruption and to provide safety and security for those people. 

· Informers shall be given immunity from civil or criminal charges for making the disclosure.

· It is a criminal offence and shall be stated in Chapter 8 of this law to commit acts of retaliation against informers whether they planning to provide information, are providing information, or have in the past provided information to the Anti-Corruption Secretariat.

· The state shall provide protection for safety and security to witnesses and informers, if necessary.

· Require the state to protect an informer’s identity or take measures to ensure an informer’s physical safety, if necessary. Also, if necessary, a witness of this kind shall be allowed to answer to questioning during the court hearing without showing up. 

4-Asset Declaration

The asset disclosure regime contains more details than the previous draft. However, its function is still unclear. 

· The Secretary General shall have the right to open the asset declarations of those suspected of involving in corruption in order to check and to give them to supervisors of the suspects to assess conflict of interests, or give them to the courts as evidence.

· A conviction shall be required prior to the State being able to confiscate property that is the result of unjust enrichment.

5-Criminal Offence Provisions

A number of offence provisions require revision to fit the intent expressed in the United Nations Convention Against Corruption (UNCAC). 

· The provisions on unjust enrichment, favouritism, illegal bidding, illegal benefiting, and private corruption, shall be re-examined based on comments made by the International Technical Advisors.

     6-Civil Society Participation

In order to successfully combat corruption, the SNCAC shall have a civil society representation. 

The Anti-Corruption General Secretariat shall establish advisory councils for all of its departments. The Advisory Councils shall have the representation of civil society.

7-International Cooperation

The Ministry’s drafting committee shall consider including an International Cooperation Department in the General Secretariat of the SNCAC, which would be useful especially in cases of asset recovery and coordination efforts at the judicial cooperation, extradition, and mutual assistance.

· The extradition provisions should be revised in accordance with the UN Model Extradition Law.

· The Secretary General shall be allowed to liaise with international law enforcement agencies for the purposes of information sharing on international anti-corruption investigation.

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Appendix 4 – Suggested new indicators for Agriculture and Natural Resources Management

The following suggested indicators cover state property management, forest management and management of state revenues with respect to natural resource management.  Further thought is needed on indicators for agriculture and fisheries, which are not included here.

1-Indicators for State Property Management

Indicator 1: Legislative

- Enact legislation to halt the sale and/or transfer of state land and land eligible for registration as collective immovable property of indigenous communities to private parties.

- Complete and enact all outstanding legislation mentioned in the sub-decree on state land management.

- Pass/enact policies and procedures for the registration of collective immovable property of indigenous communities including legislation on legal recognition of indigenous communities.

- Pass sub-decree on economic land concession (rollover).

- Enforcement of Article 18 that private sales transactions on state lands are illegal and hence should not be validated by officials (rollover). 

Justification

Indicator 2: Implementation 

- Maintain suspension/moratorium on logging, transport of logs  (rolled over).

- Application of sustainable management planning, including ESIAs, investor evaluations, consultation with local communities, public disclosure and comment period prior to entering into new contracts for private use/management of state managed natural resources – including land, fisheries, forestry, and mines (rolled over). 

- Initiate review of existing economic land concessions for compliance with law and the economic benefits they generate, and institute moratorium on granting of new economic land concessions until such review is completed, publicly disclosed, and legal framework is completed 

- Cancellation of all economic land concessions inconsistent with law following review or found to be inconsistent with law based upon MAFF disclosures per Article 18.

Justification

    ▪ There is a need to reassess the overarching paradigm/assumption that large scale agro-industrial development has high potential for economic growth and improvement of rural livelihoods (in line with paragraph 4.40 of NSDP).

Indicator 3: Information disclosure

- Increase transparency of state management of natural resources through immediate and regular public disclosure of existing contracts and compliance status (royalties and other key provisions) of contracts governing economic land concessions, mining concessions, fishing lots and continued disclosure of status review of forest concessions (rolled over). 

- RGC disclose the location and legal status and process for termination of mining concessions, Military Development Zones, economic land concessions and other development arrangements situated on forest land or in protected areas and inconsistent with law governing management of these areas (rolled over). 

- Public disclosure of all (i.e., extant and future) contracts/agreements or development plans between government and private sector related to land use, harvesting rights or transfer of ownership on state land. RGC ensures public consultation prior to any private development occurs.

Justification

2-Indicators for Forestry

For the forestry sector the following additional measures, to be included in indicators, are recommended:

a) Terminate the forest concession system, in line with Recommendation D/21 of the 2004 Independent Forest Sector Review commissioned by the RGC and donors.

b) Maintain the existing moratoria on logging and transportation of logs, until the following steps have been completed: 

c) Impose a moratorium on the construction of roads on forestland, in line with Recommendation D/32 of the 2004 Independent Forest Sector Review.

d) Revise and strengthen the independent monitoring institutional framework and terms of reference, following a period of public consultation.  Appoint a qualified independent monitoring organization on the basis of an open bidding process.

3-Indicators for management of state revenues with respect to natural resource management

With respect to the management of state revenues, the following measures, to be included in indicators, are recommended:

Ø Monitor, document and scrutinize management and sustainable use of Cambodia’s natural resources (could be changed to state assets).  Publish findings on a quarterly basis.  Establish a secretariat to carry out these functions.

Ø Monitor investigation by National Audit Office into all outstanding timber royalties owed to the Cambodian state; monitor future payment of royalties and other fees and payments related to timber and other natural resources.  Publish findings on a quarterly basis. 


[1] S/EIAs – Social and Environmental Impact Assessments

[2] Three draft laws include; Penal Code, Penal Procedure Code, and Civil Code

[3] Law on the Amendment of the Supreme Council of Magistrates; Law on the Status of Judges and Prosecutors; Law on Anti-Corruption

[4] UN Report of the Special Representative of the Secretary-General for Human Rights in Cambodia, 20 December 2004, Paragraph

[5] UN Report, 20 December 2004, Paragraph 21.

[6] NSDP Discussion Draft – 10 October 2005: Note to the Reader


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