Working Paper 31:
Law Harmonisation in Relation to the Decentralisation Process in Cambodia
Robert B. Oberndorf, J.D.
Working Paper 31 in English, 52 pp
Working Paper 31 in Khmer, forthcoming

Executive Summary

Decentralisation and deconcentration are part of the government’s reforms to promote democracy, improve development opportunities, reduce poverty and ensure sustainable development.

          The government is undertaking decentralisation reforms to devolve power to semi-autonomous[1] elected governments at the commune and sangkat (urban commune) level, and to move towards enhanced roles for provinces and municipalities as deconcentrated entities of the centre.  In March 2001 the government embarked on a bold experiment in decentralisation of government, with the enacting of the Law on Administration and Management of Communes (LAMC) and Sangkats, and the Commune Election Law, followed by elections of commune councils in February 2002. A range of functions, spending authorities, and resources have been devolved to local governments, and the provincial governors have been given responsibilities of support to and supervision of commune/sangkat councils. In support of this effort, a large body of rules and regulations has been passed in a relatively short period of time. How these rules and regulations fit together with each other and already existing legislation, plus how the ongoing government efforts towards decentralisation fit within these structures, are the focus of this report. Several primary observations can be made as a result of analysing the current situation in Cambodia.

1.          Much credit should be given to the government for enacting such a large number of rules and regulations in support of decentralisation in such a short period of time.

2.          There was no policy document approved by the government when the primary legislation was drafted, so there was no clear guidance available for the drafting of the legislation. Essentially, the LAMC became the policy document. This, in addition to the short time frame involved, has led to a rather complex and poorly linked body of rules and regulations that contains significant amounts of overlap and lack of clarity due to poor drafting. The body of rules and regulations is, however, consistent with the quality commonly found in Cambodia, and they are implementable.

3.          Although there are problems within the body of rules and regulations passed, these do not seem to be impacting the implementation in the field in any serious way due to the use of prakas (ministerial decision) for that implementation. Over time, as problems arise, they will need to be addressed.

4.          The current pace of decentralisation appears to be moving in accordance with the desire of the government and, according to many commentators, at a speed that is appropriate considering the cultural and capacity context within Cambodia.

5.          Prior to the next mandate, clear policies that will guide the drafting of new rules and regulations, as well as amending existing rules and regulations, need to be drafted for both decentralisation as it relates to commune councils and deconcentration as it relates to provincial and district levels of government (the organic law). The drafting of these policies must be done in conjunction with one another since decentralisation and deconcentration are inextricably linked.

6.          In terms of current legislative gaps, the most obvious is the lack of the organic law for provincial and district levels of government. In addition to this, the primary pieces that need to be put in place in the near to medium term include: rules and regulations on the determination of types, rates and procedures for the collection of revenues from fiscal taxes, non-fiscal taxes and service charges for commune councils (this must be done in the context of the harmonisation of fiscal management throughout the government at all levels); rules on administrative fees for delegated agency functions of the commune councils; procedures for selection, taking office and changing of village chiefs, appointment of assistants to village chiefs and the working procedures and duties of the village chiefs; guidelines on commune councils hiring staff as needed; drafting of commune deika (local regulations); guidelines on the creation of committees to assist in carrying out the commune councils’ duties; and guidelines on the roles and responsibilities of multiple communes working together.

7.          The issue of extending the mandate of the National Committee for Support of Communes (NCSC) needs to be addressed within the policy on decentralisation mentioned in point 4 above. If it is extended, then the LAMC and related rules and regulations will need to be amended accordingly.

8.          There needs to be a comprehensive, systematic review of the financial/budgetary system if commune councils are to start generating actual tax revenue, as opposed to fees, as envisioned in the LAMC. There needs to be a clear system in terms of what revenue is gathered by the national treasury, the province and the commune in order to avoid issues of over-taxation or double taxation of the citizenry.

9.          Nothing has really been done on commune boundary redistricting, though the goal is to have this issue addressed before the next commune elections in 2007.

10.      Drafting of the organic law will inevitably impact upon the existing rules and regulations related to decentralisation. In light of this fact, and other issues which are having an impact on the current rules and regulations, a comprehensive, systematic redrafting of the LAMC and the sub-decrees and prakas thereunder may be called for. If so, this must be carefully handled, with a clear policy document in place to guide the drafting. If the goal is to have the Organic Law passed before the next commune elections (the government is stating that this is the goal), then this must also be completed before the next commune elections.  The two issues are inextricably linked and must be addressed at the same time. This will require coordination and cooperation between the main policy bodies involved (NCSC, CAR, MoI & Seila), along with strong political commitment by the government.

11.      The organic law should address the issue of horizontal coordination of deconcentration amongst the line ministries at the provincial and district levels of government.

12.      The NCSC has not had time to review legislation that has an impact on the commune councils, such as the recently passed Social Land Concession Sub-decree. The problem is that agency functions are being delegated without the necessary mechanisms in place to ensure that the required resources (capacity and fiscal) are included.

13.      Commune councils have an important role to play in land use and natural resource management, even though they may not have any direct decision-making authority within certain areas, such as the forestry sector, at the moment.