Tuesday, June 24, 2008

Readings in Decentralization - insights from Cambodia - Series Note:4

The following number of articles have some insights in Decentralization. The link is here.

Commune Councils

By Molly Ball
The Cambodia Daily

The Feb 3 commune council elections were widely hailed as a major step toward grassroots democracy in Cambodia. But that goal won't happen overnight.

"If people really think they're going to get 100 percent of local governments functioning right away that's never happened anywhere," said Scott Leiper, a UN adviser to the government on decentralization.

The massive amount of work that must be done to get 1,621 commune councils up and running will be complicated by the fact that many details of how the councils will proceed are still unclear.
"On election day, Cambodians went to vote for a system of government that has yet to be fully defined," said Eric Kessler of the National Democratic Institute.

Critics say this uncertainty is ripe for exploitation by the central government. Participants in the process say the government is successfully scrambling to make the next steps clear.

The National Assembly passed the Commune Administration Law almost a year ago, laying out the councils' basic format. But the law is full of phrases like "The Minister of Interior shall issue an instruction concerning the procedures..." or "...shall be determined by Sub-decree."

"[The commune election] is a big step for democracy, but at the same time the warning is clear," said former CPP senator Chhang Song. "If you do not describe the exact, precise, clear, practical roles for each council and each member of council, you will have a lot of infringement by the [national] government."

An inter-ministerial body called the National Committee for Supporting the Communes has met at least once a month since mid-2001 and formulated some, but not all, of the 12 additional laws, subdecrees or ministerial instructions needed to determine what the new councils' powers, duties and structure will be.

Some observers believe the national government and especially the ruling CPP deliberately put off creating these rules until after the election. The US-based International Republican Institute said in its evaluation of the Feb 3 elections, Ã’Thus far, the Cambodian government has failed to produce implementing regulations for the operation of commune councils.

"Until proven otherwise, this failure will be considered an act of bad faith by Cambodia's ruling party. The power to write these rules must not be allowed to be an insurance policy on maintaining local power for the ruling party."

Opposition leader Sam Rainsy expressed similar concerns. "Much of the implementation remains unclear," he said. "The CPP will devise ways to preserve as much power as they can. They will write the laws to suit them."

Others who don't share these conspiracy theories admit that the still-missing aspects of the law will cause problems.

Most of the councils' first year will consist of intensive training in orientation, finance and planning. But council members can't be taught rules that don't yet exist, Leiper said.

"I think all the major stuff is going to be in place in time, but it does put pressure on the training process," he said. "For things to move forward, a lot of things have to be passed or you have to come up with interim arrangements."

Two major areas will take some time to formulate. The first is the procedures for levying local taxes, which are supposed to be the councils" main source of revenue.

The commune administration law gives the councils the power to impose taxes, but it says "the law shall determine the category, degree and manner for collecting" them. Until such law is passed, the councils effectively can't tax their citizens.

"This will be complicated, since it is connected with the interests of the local people," said Sak Setha, head of the Department of General Administration in the Ministry of Interior and the government's point man on decentralization. "It will need a lot of study and discussion. We will try to draft these rules this year."

But Leiper estimated it would take two years before communes start collecting taxes.
Until then, the councils will have to subsist on their small allocations from the national government. There are 20 billion riel (about $5 million) budgeted to the national Commune Fund, plus $1.5 million from donors; procedures for disbursement should be set up by Khmer New Year in April, Sak Setha said.

But he admitted that $6.5 million isn't much. "We have to divide a very small GDP into three pockets the national government, provincial government and local government," he said.

If the $5 million were divided evenly between the communes, each would get just more than $4,000. In fact, it will be distributed based on an existing formula that takes into account the communes' population and level of need.

Without funds, the councils will likely be hard pressed to conduct even their routine duties such as registering births and marriages not to mention creating and implementing a Commune Development Plan, as the law demands.

The second major provision that will take time to define is the election of village chiefs. According to the law, "to increase the effectiveness of commune administration," the new councils are to arrange for each village in their jurisdiction to elect a chief in accordance with a ministerial instruction.

This instruction will be tricky to craft, Sak Setha said. "This is a very sensitive point. In our Constitution, the village is not a tier of administration, just a unit of community it is informal. But in reality a lot of projects [must] cooperate with the village people," he said.

"We need to have seminars and discussions relating to the organization of the villages. This year we will set up the seminars, after Khmer New Year, to decide things including how village chiefs will be elected. We will need to review all our systems of rural development to integrate them to support national policy for decentralization and local governance."

As Sak Setha himself pointed out, cooperation on the village level will be essential to the communes' development but it may be more than a year before this cooperation can be organized.

Another concern to many observers is the chain of command. As it stands, the commune councils are under the supervision of the national government their legal relationship is with the nation's only other elected body, the National Assembly.

"These multi-party commune councils still report to and are dependent on the central government, which is still single-party-dominated," Kessler said. "That's troubling."

The authority for administering the communes rests with the Ministry of Interior, but the ministry has delegated or will delegate most responsibilities to provincial or district officials as a matter of practicality, Sak Setha said.

This means another entire level of government will have to be trained and equipped to carry out local administration, Leiper pointed out.

To some, it also raises the issue of true autonomy. "I wonder how much [the councils] will really be able to do when they are still below" appointed district and province chiefs, said Sam Rainsy Party parliamentarian Tioulong Saumura.

"At the district and province level, it must be clear that their role is to support the commune councils, not control the commune councils," said Puch Sothon, acting director of the Commune Council Support Project, a collaborative effort of nine NGOs.

"The commune councils work only under the legislation. If they know this, if they know their duties, responsibilities and power clearly, if they know all the legislationÑthey can protect themselves as autonomous."

According to the law, the Ministry of Interior is to appoint a clerk to each council. Some 1,884 clerks one for each commune plus a reserve corps were recruited in their local areas and have been trained, Sak Setha said.

The clerks are just assistants to the council, Sak Setha said. They keep track of documents, handle paperwork and perform simple income-and-expenditure accounting.

But some worry that since the clerks are agents of the ministry, they will at best make council members too afraid to speak their minds, and at worst serve as informants, keeping tabs on the councils for the central government.

Compounding these fears is the fact that the ministry, according to the law, has the power to dismiss any council whose actions it deems "contrary to the Constitution and the Government policy."

"The policy of replacing the whole council if they deviate from the government line is very dangerous," Chhang Song said. "It makes the clerks look like spies and the Minister of Interior like the super-spy."

Sak Setha said that possibility is prohibited in the ministerial instruction that lays out the clerks' duties. "The clerks are not part of the monitoring, control and intervention procedures," he said. He pointed out that councils are allowed to request a new clerk if they don't like the one they are given.

The law also specifies that "every commune councilor has freedom to express their opinions in the meetings of commune council. No commune councilors shall be prosecuted, detained or arrested because of opinions expressed during the meetings of commune council."

There are many other variables that will make or break the new commune councils. Will council members be able to put aside their party affiliations and work together? Will their constituents take an interest in the councils" doings, participate in the process and hold the councils accountable at the polls?

It's not that decentralization has been mismanaged; it's just that much remains to be seen, observers say. Everyone, it seems, wants to believe that the kinks will be ironed out, the uncertainties resolved.
"We must be optimistic with this process. We must go together," Puch Sothon said. "We can criticize, but only in a constructive way. We hope it will work."

Clearly, the councils have a long way to go from clearing up the legal framework for their operation to solving the many practical hurdles. But despite the current scramble to take care of the business left still unfinished on Election Day, Leiper said the Feb 3 elections were not premature. "It was important to set a deadline [with] the elections," he said. "That's what provided the pressure for all that has been done."

He pointed out that many other countries have embarked on decentralization initiatives an increasingly popular reform in international development schemes with far less preparation. In both Pakistan and the Philippines, for example, newly elected local governments waited two years for their first funding from the central government.

"I think it's quite possible that in five years we could look back and say Cambodia moved faster than any country in Asia in terms of decentralization," Leiper said.


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Patience, Support Needed for Decentralization to Succeed, Experts Say

The new councils must take power within 14 days of when official election results are announced. If all the results are released by Feb 21 as planned, this deadline is March 7.

The new chiefs must call the first council meeting within a month of taking power probably by April 7.

The councils must meet monthly in public. More than half the members must attend a meeting for it to be valid. A majority of the entire council must vote to approve important measures.

Councils may also meet secretly if they follow Ministry of Interior regulations.

Their first order of business should be to draft their own rules of operation. A ministerial instruction includes guidelines and a model for creating these internal rules.

The councils are to arrange for each village to have an elected chief. The Ministry of Interior has not yet issued the procedures for electing these chiefs, or their duties.

The councils will be funded by local tax collection and money from the national government. The National Commune Fund contains $5 million that may be disbursed as soon as Khmer New Year. Procedures for local taxation may take a year to formulate.

Councils' duties include security, public services, economic and social development, and protecting the environment and natural and cultural resources. They also perform administrative tasks and carry out initiatives originating at the national, provincial and district level.

Councils have no authority over forestry, posts and telecommunications, national defense and security, or monetary, foreign or fiscal policy.

By law, the Ministry of Interior can fire a council that does not follow "Government policy," but individual council members cannot be punished for expressing their opinions in meetings.

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