The rule of law – but not for everyone

[Published in the Cambodia Herald and Khmer Times on 10 June 2015.]

A persistent theme of many governments and many non-government organisations involved with Cambodia is “strengthening the rule of law”. Since at least the time of the UNTAC-organised election 22 years ago, there has been ongoing pressure on the government to fill the numerous legal gaps left by the rule of the Khmer Rouge and subsequent civil war – and to do it quickly.

So, over the years, laws have been passed, and often amended, governing business, elections, national and local administration, traffic, anti-corruption, schools, pharmacies, media, courts, civil service – not to mention an entire civil procedure code.

But there is one area where the champions of the “rule of law” have been putting pressure in the other direction. When it comes to NGOs, they seem to think that the best law is no law at all.

The government began planning a law on NGOs way back in 2003, circulating and discussing what should be included in the law. This process took some eight years before a third draft of the proposed law was released in mid-2011. The response of certain NGOs was that the law was being “rushed”, that not enough time was being allowed for consultation.

Typically, the same NGOs directed most of their efforts to enlisting foreign support, misrepresenting the content of the draft law as much as was necessary for that purpose. Among other successes, they managed to score a New York Times article in which journalist Elizabeth Becker repeated these distortions, apparently without bothering to check them. (For my comments at the time, see https://letters2pppapers.wordpress.com/archives/2011-2/elizabeth-becker-and-the-campaign-to-put-ngos-above-the-law/.)

This hostility to the proposed law was not general among Cambodian NGOs. The gaggle that objected were actually quite a small minority among the 3000 or so registered NGOs. And the objectors were not primarily the organisations that are building toilets or digging wells for poor rural Cambodians. Rather, they are the groups that are mostly foreign-funded and that see their role as being the ultimate judges of democracy, freedom and good government.

Like many countries, Cambodia has three branches of government: legislative, executive and judicial. But the objectors seem to regard themselves as a fourth branch of government – and one that is superior to the other three. They consider the actions of the actual government as illegitimate unless they are approved by “civil society” – by which they mean themselves.

So it was predictable that the same gaggle would again create the maximum possible uproar when the government announced that it was preparing to introduce the latest draft of the NGO law to the National Assembly. “Civil society under attack”, screams the website of Licadho. Allow time for consultation, demands the gaggle. Twelve years weren’t enough?

There shouldn’t be an NGO law until “the legislative drafting process” is “transparent”, declared a statement of Licadho and Adhoc. Inconsistently, they didn’t argue that this supposed lack of transparency in the legislative process requires the invalidating of all laws passed since 1993.

In fact, the process for the NGO law has been more transparent than for a lot of legislation. After the NGO screams of anguish in mid-2011, the government attempted to take account of objections by issuing a fourth draft of the law, in December 2011. Prime Minister Hun Sen announced then that the law would be delayed to allow further consultation. Two years later, in December 2013, the Ministry of Interior announced that it was planned to have the law proceed in 2014, and obviously that schedule was further delayed.

The draft now going through the Council of Ministers is the same draft made public in December 2011. So Adhoc and Licadho and any co-thinkers have had three and a half years in which to submit to the government or to members of the National Assembly reasoned criticisms of anything in the draft law they think is amiss. Have they done so? I don’t know, but if they have, that fact has not been well publicised. Maybe the problem is that many people would not consider “NGOs should not be subject to laws” a reasoned criticism.

If I recall correctly, the last time around, the NGO objectors were able to get a supporting statement from Hillary Clinton, who was then the US Secretary of State. This time, they have enlisted a US deputy assistant secretary of state (one of several) named Scott Busby. That is several rungs below Clinton on the Washington ladder, but he makes up for it by talking more.

Busby was quoted in the June 3 Phnom Penh Post as urging the government “to make the draft legislation available to members of civil society and to the public” – thus revealing that he didn’t know or didn’t care that the legislation had been publicly available for three and a half years.

Busby also said that there is “little need” for the NGO law because anything bad that a wayward NGO might do is already illegal. That argument is doubly wrong. First, if all the law does is to forbid actions that are already forbidden, why does anyone care? Second and more importantly, Busby was skipping around a real point of concern for both the government and more than a few NGOs. That is the question of where their money comes from and goes to. It is often the case – in Cambodia or anywhere else – that the clue to illegal behaviour, or the proof of it, consists of money transactions that don’t look quite like what they claim to be.

There has just been a good illustration of this regarding NGOs in the United States, which Scott Busby might not have heard about because at the time he was busy telling Asian governments how they should be governing their countries. Two weeks ago, the US federal government and state governments filed charges against four “charities” that were supposedly raising money to help cancer victims but in fact were only making their managers richer. One of the four, for example, raised $86.8 million for “charity” but gave only 1 percent of that amount to cancer patients.

From what little I have read about those US NGO scams (http://www.theguardian.com/society/2015/may/19/us-cancer-charities-charged-misusing-donations), the first suspicions were raised by investigative journalists, but the government charges must have relied on the financial statements that NGOs in the USA are required to file. Now, Scott Busby may think there is no need for NGO financial disclosure here, presumably based on a belief that Cambodians are inherently more honest than US citizens. I wouldn’t argue with him about that last point since he has a lot more recent experience in the USA than I do, but I would nevertheless maintain that a requirement that Cambodian NGOs disclose what they receive and how they spend it is desirable.

Let me illustrate with a real example. In 2002, Kem Sokha announced his retirement from politics to establish the Cambodian Centre for Human Rights (CCHR) with a grant of $450,000 from the US government, channelled through the International Republican Institute. We know this because US laws required the IRI to say something about distributing money. In subsequent years, the US gave the CCHR several million dollars more, although this was not widely known until long after 2007, when Sokha decided to return to politics and changed his Human Rights Centre into the Human Rights Party. If the ongoing US funding had been known at the time, it would have been clear that, deliberately or not, the US government was in effect funding one of the opposition parties. That is the kind of thing that Cambodian voters ought to have the right to know.

Such knowledge is important even if the NGOs concerned never convert themselves into political parties. Many NGOs, especially those complaining loudly about the proposed NGO law, lobby or pressure the government to adopt or change particular policies, and they seek to generate public support for the policies they favour. That is and should be their right. But shouldn’t it also be the right of other Cambodians to see whether the donors supporting this activity might be people who have a special interest in getting those policies adopted?

Why should the people who are constantly calling for “transparent” government not be a bit transparent themselves?