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As the ASEAN integration deadline of 2015 approaches, Cambodia’s attractiveness as an investment destination is increasing apace. As your company assesses investment opportunities around the globe, our newly-updated Guide to Doing Business in Cambodia provides a valuable overview of the legal and regulatory climate in the Kingdom. If you would like further information regarding any of the topics presented in the Guide, please don’t hesitate to contact our legal professionals at: BNG Legal Cambodia.
Discrimination is something we all do all the time. We use mental shortcuts of our past experiences to make decisions easier. However, some discrimination is wrong and can be bad for society. When people of a certain race or gender are excluded from jobs solely on the basis of their skin or gender then useful, productive workers for that job are forced to do something else that they might not be as good at. A recent article in the Phnom Penh Post details Cambodian women’s difficulty in being treated equally in the workplace. (story here).
Section 2, Article 12 of The Labor Law of 1997 does provide women and many other groups with protections against discrimination, it reads:
Except for the provisions fully expressing under this law, or in any other legislative text or regulation protecting women and children, as well as provisions relating to the entry and stay of foreigners, no employers shall consider on account of:
- political opinion,
- social origin,
- membership of worker’s union or the exercise of union activities;
to be invoked in order to make a decision on:
- defining and assigning of work,
- vocational training,
- granting of social benefits,
- discipline or termination of employment contract.
Distinctions, rejections, or acceptances based on qualifications required for a specific job shall not be considered as discrimination.
This language seems to extend beyond the hiring process and to wage inequality as well.
More generally, the Cambodian Constitution itself says “every Khmer citizen shall be equal before the law . . . regardless of race, color, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status” (article 31). That covers an awful lot of people, but are LGBT groups left out? What about the disabled? At the risk of being too bold, I wonder whether the clause would be stronger if it simply said “every Khmer citizen shall be equal before the law” full stop?
In 2009, a law was passed that had the purpose to “prevent, reduce and eliminate discrimination against persons with disabilities” (article 2 – Law on the Protection and the Promotion of the Rights of Persons with Disabilities). The law requires all public facilities to provide access for all disabled people (nothing terribly surprising there). However, provisions requiring “ministries and state institutions that recruit civil servants to be employed, shall employ persons with disabilities as states in article 33 of this law, in accordance with the appropriate set quota. The set quota and recruitment process shall be determined by Sub-decree.”
Officials from The Cambodian Disabled People’s Organization have been quoted as being happy with the laws on the books, but unhappy with the resources devoted to implementation (source: here). I suspect women and other groups would have similar things to say.
The digital revolution has exponentially increased the amount of personal information that is collected, processed, and stored. How this data is treated, and the scope of personal privacy, is a fiercely contested issue. While the Cambodian tech sector is still relatively small, data collection and personal privacy remains a salient question for individuals as well as businesses.
In our commercial practice, privacy and data issues often come up when a client asks us to review their privacy policies or wants to know what sort of restrictions there are on the data they collect. For better or worse, there is no comprehensive data protection or privacy law on the books (and none under draft, to the best of our knowledge). There is, however, a constitutional right to privacy, enshrined in Article 40:
The rights to privacy of residence, and to the secrecy of correspondence by mail, telegram, fax, telex and telephone shall be guaranteed.
What this “right of privacy” means in practice is left to further laws and regulations, as well as to how courts interpret that right. There is also a patchwork of protections found in a number of laws, and these are often quite specific.
For instance, the Press Law restricts the publication of the identities of minors involved in civil or criminal suits, parties to family law cases, and female (though strangely not male) victims of molestation or rape. There are a number of other privacy provisions related to medical patients and financial institutions, though each are fairly narrow.
While there isn’t much in the way of a comprehensive Cambodian privacy law at present, anytime you put data on the internet or send it abroad for processing or storage, it is likely you’ll need to consider the laws of other countries too.
Over the past several years, Cambodia has passed a number of fundamental laws, perhaps none more so than the Civil Code of 2007. The code’s 1,305 articles deal with a broad range of issues – from contracts, to marriage, to real estate and torts. Many years in the making, the code unifies and revises a great number of earlier laws and regulations. While there’s no way to summarize all the provisions, the titles of the code’s books give an idea of what is covered:
- Book I: General Rules
- Book II: Persons
- Book III: Real Rights
- Book IV: Obligations
- Book V: Particular Type of Contracts/Torts
- Book VI: Security
- Book VII: Relatives
- Book VIII: Succession
- Book IX: Final Provision
Though the code was promulgated in 2007, it didn’t come into effect until late last year. It’s important to note the 2011 “Promulgation on the Law of Implementation of the Civil Code” amends and supplements a number of the Civil Code articles. Also, a number of articles from prior laws and regulations survive and are still in effect, and must be read in conjunction with the new code. In the coming months, we’ll be taking a closer look at the most significant parts of this important new law.
Looking for a Cambodian law or regulation? Finding publicly available resources, particularly online or in English, can be tricky. To the best of our knowledge, there is no up-to-date and complete database freely accessible. Below is a short round-up of the resources we’ve been able to find – none are perfect.
If there is a specific law or regulation you know to exist, and just need a copy, you might be able to find it on one of the sites below (though there’s little guarantee as to the accuracy of the text).
However, if you are trying to answer a legal question on your own and don’t know the specific law you’re looking for, we would strongly caution against relying on these online resources. You might find one or two laws on the topic, but as these resources are merely a selection of what is actually the law of the land, there’s a good chance that there are other texts you’re missing. That can create a false sense of security, and set you up for real trouble should a problem arise.
So except for very basic questions where you already know which law to rely on, the Do-It-Yourself route is ill-advised. Reputable Cambodian law firms should all have a complete database of laws, regularly updated as laws come into effect. Best to ask a professional.
- http://www.gocambodia.com/laws/ – Despite being the #1 Google hit when searching for “Cambodian Law”, this site has a small and seemingly random collection of laws. What’s worse, at least a couple of laws (we just checked the Labor Law and Insurance Law) are missing a large portion of the provisions. It seems the texts were just cut off, leaving out all the articles after that point. Best to steer clear.
- http://cambodia.ohchr.org/klc_pages/klc_english.htm – Put out by the Office of the United Nations High Commissioner for Human Rights in Cambodia, this compilation is current through 2005. They’ve only collected “those laws and other legal instruments that are most relevant to day-to-day practice in the administration of justice and institutional development”. Khmer only.
- http://portail.droit.francophonie.org/df-web/collection.do?databaseId=282 – This French site has a small collection, all in French, but ends in 1998.
- http://daracambodia.blogspot.com – This is an interesting and well-intentioned effort by a Professor at Panassastra University to publish laws online. There are a fair number of laws and regulations, mostly in Khmer. Last updated in 2010.
- http://www.bakc.org.kh/ – The Bar Association of Cambodia’s website has a fairly complete set of khmer-only texts.
- http://www.bnglaw.net/index.php – This is one of the most complete online databases, though access is restricted. Most of the important laws and regulations are in English, the rest are in Khmer.
There are a few other sites out there, though they seem even less complete than these. Post us a comment if you come across any others you’d like to recommend.
The Post has an interesting story about a new law firm, reportedly the first public interest firm in Cambodia:
On the surface, Samreth Law Group is a private firm and does much of its work for private clients. But instead of pursuing the profit motive, funding from the private practice is reinvested in public interest legal advocacy. […] [T]he firm uses a sliding pay-scale fee structure that takes into account its clients’ ability to pay meaning that they often work pro bono.
The biggest issue, as the article points out, is the potential for conflict between their paying private clients, and their pro-bono public interest clients:
“Because working on high-profile land dispute cases can put them up against powerful interest, the firm must ensure that it treads carefully in order to preserve he flow of private work it depends on. ‘So, the strategy of case selection is important’, [senior lawyer] Ly Ping said. ‘We try to take medium-level cases, ones that are not too big.’ ”
Best of luck to them.
From now on you’ll see a little box up at the top of this page labelled ‘Legislation Tracker’. The idea is monitor legislation as it makes its way through the law-making process, or stalls and dies a silent death. The Post and Cambodia Daily do a good job of reporting on major pieces of legislation as they happen, but to my knowledge there’s no public database of proposed laws. If you have any more information or corrections, feel free to leave a comment.
Excellent post over at The Mirror about the gulf between law and implementation of law. On public understanding of law, he writes:
“But there are obviously also cases where it is surely quite difficult for the public to understand the complexity of some legislation – and if it is not easy to understand the rules, there is a lower motivation to follow them – though this is normally wrong not to follow the law.”
He’s absolutely right that many people will throw up their hands in exasperation if laws are too complex to understand. While some technical laws might be difficult for the lay-person to fully grasp, in general I’ve found Cambodian laws to be fairly clear and straightforward. Foreign technical experts are often involved in drafting legislation, and as a result Cambodian laws often reflect general legal principles common to most other countries.
In my view, the greatest barrier to following the law is access – it’s simply too difficult to find legal documents. Astonishingly, there’s no comprehensive legal database or library anywhere in the country. There have been no fewer than seven foreign aid projects involved in compiling laws, but unfortunately nothing sustainable and up-to-date has come out of it. Yesterday, I met with a foreign expert working through a university here in Phnom Penh who is working to create just such an online database. I’m hopeful that in the near future we’ll have better access to laws, which should provide more motivation to follow them.