NGO Committee
Leaders
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 ACL needs to specify a functionally independent Secretary General who manages the day-to-day work of the 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 Anti-Corruption Body 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 CSOs.
b- Secretary General
· The Secretary General shall be free from the political influence of the Supreme National Council Against Corruption. 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 anti-corruption body 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 accepts 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.
· In addition to their normal judicial police powers, the ACB's investigators shall have power to arrest any suspect based on flagrant crime or reasonable ground supported by substantially incriminating evidence which is specific and consistent and indicates that the suspect participated in the commission of crime of misdemeanor relating to corruption.
· 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.
· The provisions on unjust enrichment, favoritism, 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 Supreme National Council Against Corruption 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.
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).
There has been no progress on the drafting of a Freedom of Information Law, with work not yet started and a committee to prepare this law not yet formed. At the same time, a new Archives Law has been prepared without broad consultation, which appears to reduce freedom of information by making release of secret information an offense that can lead to imprisonment without clearly defining what kind of information is secret.
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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 Magistrates (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
There has been no noticeable progress on the adoption of the 8 listed laws. We still note that 7 of the laws are with the Judiciary Secretariat of Government for consideration and only the Civil Code has progressed to the Council of Ministers. It has been reported that the Criminal Procedure Code will be sent to the Council of Ministers in parts in an effort to get it passed through more quickly in time for the beginning of proceedings of the Khmer Rouge Tribunal.
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 Magistrates 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.
Most recently we have noticed that the Executive is interfering with the judicial system by attempting to convert certain civil actions (relating to demonstrations) into criminal actions in order to detain the alleged offender immediately until their court hearing. We see this as a ploy by the government to prevent and suppress people from protesting, for example, against land grabbing. The Executive must desist from this form of interference. It is a breach of the Article 21 of the Criminal Procedure Code.
Recommendations:
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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. The next challenge is to formulate the Organic Law and related regulations to effectively translate the policy into practice. NGOs strongly recommend that there be a transparent and inclusive process in the formulation of the Organic Law, which includes relevant government institutions, donor partners, NGOs and citizens, including women. Consultative processes need to be set in place to ensure that vital information and experiences from a broader stakeholder community feed into the law formulation process. In the end, NGOs would like to see clear institutional frameworks for meaningful civil society and citizen participation in decision-making and accountability processes at the new levels of sub-national government structures. The clarity of the institutional framework on civil society and citizen participation in translating D&D visions and principles into structures and mechanisms is crucial to the successful implementation of the policy document.
NGOs will continue to partner with the government in the implementation of the D&D policy and, once promulgated, the Organic Law. We welcome the recent action of the government to involve civil society organizations in the Provincial and Municipal Accountability Boards, a body which is set up to ensure the transparent, accountable, and effective implementation of the Commune/Sangkat Funds. While NGOs have accepted this role in most provinces, we note that in a few provinces NGOs have felt an observer role would be more in keeping with their own organizational mandates. We would like to suggest that the government take a flexible approach, accepting an NGO representative in an observer role if so decided by NGOs in the province.
Given the increasing commitment of the government to collaborate with civil society organizations, it is very important to foster an enabling environment, including a legal and policy framework that will nurture this challenging development paradigm. It is on this note that civil society organizations in Cambodia strongly appeal to the Ministry of Interior to seriously review and modify the Guidelines to Support Commune Councils No. 010 GL, a directive dated June 24, 2005. Among other things, the Guidelines require that all missions of commune councilors, both inside and outside of the country, need to have permission from the Provincial Governors in advance and that all study tours, participation in any workshop, and other training activities of commune councilors, provincial and district officials must also be approved by the Governor. This puts the Governors, as members of the executive branch of government, in a supervisory role over Commune Counselors, the elected representatives of the people at the local level, and therefore contradicts the principle of decentralization. While we fully understand the need for commune councils to better manage training opportunities and to properly coordinate with provincial authorities, we believe that such guidelines are not conducive to commune councils obtaining such capacities. We deeply lament the issuance of such guidelines as it makes working with the commune councils cumbersome and ultimately restricts field level implementation.
NGOs would like to see 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. Special measure could include the sandwich system of candidate lists (with every alternate name of the list being a woman) and special incentives for communes with 15% or more women members.
Finally, civil society organizations commend the openness of the Royal Government of Cambodia to increasingly view nongovernmental organizations as an integral part in the decentralization and deconcentration process. NGOs gladly accept and sincerely commit to this challenge of engaging with the government at all levels as partners in the designing of strategies and policies, in ensuring transparency and accountability, and in helping to build capacities of commune councils. With this in mind, civil society recommends to the Royal Government of Cambodia to ensure a supportive environment for NGOs thereby promoting greater freedom of action to enhance its capacity in fulfilling its role in the D&D reform process, particularly at the sub-national level.
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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.
Sub-decrees have now been drafted with respect to State Land Management and Economic Concessions; and NGOs are pleased to be informed that industrial tree plantations are no longer excluded from the latter sub-decree. Development partners and stakeholders maintain a keen interest in these two sub-decrees, which are of the utmost importance in improving the management of state property in Cambodia and in ensuring the implementation of another important sub-decree on Social Concessions.
There continues to be significant public concern over the legality of recent land swaps involving state land, with evidence that the practice is continuing. While the principle of private sector involvement in improving government facilities is not questioned, it is the legality[1] of state land transfers and lack of transparency and accountability that is questioned.
As mentioned in the NGO Committee’s letter to development partners dated 16 June, NGOs strongly welcome the Prime Minister’s Order No. 02 BB dated 13 June on the Strengthening of the State’s Property Management as a significant step towards improved land management in Cambodia. This order serves to reiterate that sales of state land are illegal unless the land has been registered, as noted in the CG indicators. However, it appears that sales of state land, often through private transactions, are continuing unabated. Of particular concern is the growing number of illegal sales of state land eligible for indigenous communal title.
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.
Since the last CG meeting, logging companies have been permitted to move old logs, with SGS monitoring. Now all old logs should have been already transported, so no further log movements should be allowed, in line with the continued moratorium on logging.
An independent review of forest concession management plans has recently been completed. All independent reviews to date point to the poor quality of the plans, which do not provide a feasible basis for sustainable forestry management. The recommendations of the various reviews have not yet been properly addressed. The 2004 Independent Forest Sector Review recommended an end to the forest concession system, as inappropriate for Cambodia. NGOs strongly 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.
Various violations of the logging moratorium have continued to occur. While understanding the need for timber for local consumption, all logging needs to be based on sustainable management practices and legal requirements. Examples of illegal logging include the sawmill recently constructed in Tum Ring, Kompong Thom and operated by business associates of high-level officials. In Ratanakiri, substantial logging of luxury timber species is underway, ostensibly for the new National Assembly building. The absence of clear management plans, environmental impact assessment and clear boundaries gives scope for additional illegal logging not related to needs of the National Assembly.
Despite the moratorium on new economic land concessions and the Prime Minister’s Order No. 02 BB, it appears that there are various new Concession agreements in the making, for example, the proposed concession in Ratanakiri on forested land near the border of Vietnam. In addition, Circular No. 05 SRNrN on Granting Economic Land Concesions, 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.
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).
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.
NGOs welcome the meeting between the Prime Minister and representatives of development partners on 30 June 2005, and are pleased to hear that the Ministry of Land and the Ministry of Agriculture have been asked by the Prime Minister to furnish information pertaining to all forms of land concession to development partners, the RGC and the public. Although it was intended that this information be provided at least by the time of the 15 September GDCC meeting, NGOs are unaware of any such information having been provided as yet. In addition, other ministries such as the Ministry of Defense and the Ministry of Industry, Mines and Energy should be asked to disclose information on military and mining concessions respectively. While statements of intention are important, is must also be noted that, nine months after the last CG meeting, the indicator requiring “immediate public disclosure of existing contracts and compliance status...” has yet to be met. In addition, the “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” has yet to be divulged.
The Wuzhishan L.S. Group concession in Mondulkiri continues to stand out as a prime example of the kinds of conflicts and negative impacts on local populations which can occur if Cambodian law and the reforms agreed at the last CG meeting are not followed (see annex to the NGO Committee’s analysis in June). Despite attempts by provincial and inter-ministerial committees to lessen the impacts, requirements in Cambodian law have yet to be respected, including: contract formalities; production of environment/social impact assessment; demarcation and registration of state private property; demarcation of indigenous community land through formal communal titling procedures (as opposed to unsatisfactory and quickly done surveys); reduction of current concession size (the Land Law allows a maximum of 10,000 hectares); and the avoidance of overlaps with previously allotted biodiversity conservation areas and concessions. Nevertheless, the concession has been allowed to resume its planting operations.[2]
Problems such as those mentioned above, and the needs of Cambodia’s rural poor, suggest to NGOs that the RGC must 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, a report dated 2001 from the Cambodian Development Resource Institute (CDRI) estimated that there may be around 12-15% of the rural population without agricultural land.[3] A study of nine villages, published by CDRI in 2002, found 20% of villagers without agricultural land and a further 25% with plots smaller than 0.5 hectares, with landlessness increasing by around 2% per year.[4] Today, Cambodia may have well over 1.5 million landless people.
In short, there is limited amount of arable land left in Cambodia coupled with a growing landless population. NGOs are concerned that the trend of granting large economic land concessions will exacerbate the situation and lead to increased civil discontent.[5] While NGOs agree that it is “necessary to enhance and broaden the base for economic growth by . . . utilizing . . . high potential agricultural and agro-industrial sectors [to improve] the livelihoods of the rural people,”[6] we believe that this is better accomplished through increasing the farming potential of smallholders such as landless families, rather than increasing the holdings of private companies, many of which appear to be accountable under law. Therefore, NGOs urge the RGC 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.
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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 are pleased to observe government efforts to draft the National Strategic Development Plan (NSDP) for 2006-2010. However, the process to date has been very rushed and the substance of the plan appears to be not evidence-based or analytically underpinned by new poverty or sectoral data. There is also no linkage between the various sub-national planning processes and the NSDP. Perhaps as a result of the rushed nature of the process, there has been a lack of upstream discussion between government and civil society, and it is not yet clear how feedback and comments submitted by civil society organizations are being incorporated or dealt with. There are some successful models of bottom-up planning in the region, such as in Indonesia, from which Cambodia could learn and benefit.
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.
NGOs note some progress in anti-trafficking measures following a number of recent arrests of human traffickers, and hope that such actions will continue and be further strengthened. The Domestic Violence Law in currently under debate in the National Assembly, and NGOs wish to emphasize the importance of passing this law as soon as possible in order to make possible more timely assistance and protection to the victims of domestic violence.
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Indicator: Timely disbursements of the budget for Health and Education as agreed in the PFM Action Plan.
Education
Despite strenuous efforts, the NGO Education Partnership (NEP) has been unable to obtain any corroborated figures on PAP disbursement from the Ministry of Education.
However information from the field suggests that 2005 funding covering the period September to December 2005 has just been made available. Although this is a great improvement on previous years the payments are still erratic and unreliable. This makes planning difficult. The delays and unpredictability are a challenge for schools and many of the smaller rural schools find it hard to manage.
· NEP and EDUCAM, on behalf of its members, welcome the perceived improvements mentioned above, but recommend that the Ministry of Education Youth & Sports (MoEYS) continue to work with the Ministry of Economy and Finance (MoEF) to further improve the reliability, timeliness and percentage of PAP disbursement, so that schools may receive predictable and adequate funding.
· NGOs request that PAP disbursement data and information on disbursements to the provinces be made available to NGOs and the wider public on a regular basis.
Health
According to the PFM Action Plan, the Ministry of Health (MoH) PAP disbursement rate for the first semester of 2005 should be 35% of the total budget. The report by May 31st indicated that the PAP disbursement rate was 11% and 2% at central and provincial levels, respectively. Overall cash disbursement was 5% at the central level, 9% at the provincial levels, and in total was 6%.
End of August cash disbursement information has not yet been received. It has been noticed that the Technical Working Group on Health (TWGH) has a regular quarterly report and presentation from the Department of Finance of the Ministry of Health. And most importantly, when needed to get more clarifications from MoEF, the TWGH has usually invited a representative from MoEF to participate in the TWGH meeting for clarification. Furthermore, two donors, WHO and DFID, have been given the opportunity to participate in the Cash Management Committee Meeting on a regular basis. This is very encouraging. And the momentum must continue. However, since MEDiCAM represents the voice of Civil Society/NGOs in the health sector, it is strongly recommended that MoEF should consider inviting its participation in the Cash Management Committee so that it can follow up the process of cash disbursement more closely.
Although there has been some progress compared to the first semester, the figures show that PAP cash disbursement from the Ministry of Finance is far from reaching its target. This is particularly acute at the operational levels where it results in poor health service delivery to the public.
Medicam, on behalf of its members, recommends that the MoH and the Technical Working Group on Health (TWGH) consider this situation very seriously and take immediate action to encourage the MEF to accelerate the payments.
People continue to suffer and die due to inadequate health services caused by lack of cash flow to the local level. This is inexcusable and government must do all it can to improve the situation.
[1] The 2001 Land Law requires a law on transferring state public land to state private land and a sub-decree on state land management to be enacted for land swaps of certain government property to be legal.
[2] On August 18, 2005, the RGC allowed Wuzhishan to resume its operations despite having measured the area of the concession under use as covering 16,517 hectares—well above the 10,000 hectare limit provided by Cambodian law.
[3] CDRI, Working Paper 19, Land Tenure in Cambodia – a Data Update, October 2001.
[4] Working Paper 25: Facing the Challenge of Rural Livelihoods - A Perspective from Nine Villages in Cambodia.
[5] The Wuzhishan concession alone precipitated more than five separate protests in less than a year.
[6] As stated in the preamble to the cross-cutting indicators for Agriculture and Natural Resources Management.
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