A new law that makes all undocumented payments to government officials illegal looks impressively tough on paper. Officials who accept an illegal payment stand to serve up to 15 years in jail, while those who make the payment could spend 10 years behind bars.
How such a law can work in a country infamous for high levels of corruption and a culture of kickbacks remains to be seen, while some government and business leaders were less than optimistic.
“The spirit of the law is good to ban facilitation fees, which are very common here in Cambodia,” said Key Kak, chairman of Morison Kak Associes, a law firm in Phnom Penh. However, “it will be very tough and difficult to implement this kind of law,” Mr Kak said.
“The law will not be effectively implemented,” he added. “Corruption is deeply rooted in Cambodian society. This [is] for sure.”
Kirth Chantharith, spokesman for the National Police Commissariat, said that while police are being trained on how to implement the law, enforcement of the law was a very different matter.
“No one can guarantee it,” said Mr Chantharith, who called on police officials to report to the Anti-Corruption Unit if they suspect anyone for having taken or made an illegal “facilitation” payment to an official.
On the issue of illegal payments to police officers, he added: “The police have their name and identity number attached to their shirt. So if they ask for a payment without giving a receipt please get the name, number and time of the event.”
“When the complaint is filed [with authorities] we will take action.”
Om Yentieng, chairman of the Anticorruption Unit and a close advisor to Prime Minister Hun Sen, declined to comment on the inherent difficulties in implementing such a novel law.
Investors, however cynical of the legislation and its impact on paying fees under the table, said that international firms will have to follow the law in order to avoid the risk of facing criminal charges, and tarnishing their reputations.
“It creates a really difficult situation. Facilitation payments here are made on a routine basis,” said David Carter, president of the Australian Business Association of Cambodia.
“Whether its paying a very small amount of money for filing reports to the government or paying a policeman at the side of the road…it affects everyone.”
“International companies are inclined to say that the law is the law. That’s what international firms will do.”
Business associations here have all met in recent months with officials and legal experts to come to grips with the law, and what it means for trying to do business in Cambodia, where ‘facilitation’ fees apply to all sectors of society, whether it be when you buy a visa at an inflated price at the border, register a business, apply for a land title or simply slip a few dollars into the hand of a more than willing traffic policeman.
“If this law is applied, about 11,000 students will go to jail since most of them pay money to their teachers,” said Rong Chhun, president of the Cambodian Federation of Unions, and former president of the Cambodian Independent Teachers Association.
Mr Chhun also questioned the utility of sending such cases of corruption to the courts as members of the judiciary itself have long been accused of engaging in graft.
Rath Sophoan, Chairman of Transparency International Cambodia, said education and formalizing illegal payments was the best way to tackle the problem.
“There are two ways to address facilitation fees. One is to start an educational campaign that this is no longer an acceptable way of doing these things and that those involved will be punishable as provided by the anti corruption law. The second way is to formalize it [so that] normal fees levied by the government apply to everyone.”
The issue has clearly caught Transparency International’s attention. The organization will hold a conference with the private sector and civil society next month in Phnom Penh where the issue will be on the agenda.
Businesses in Cambodia are all looking for “predictability” and a “level playing field,” Mr Sophoan said.
“I don’t think any serious business would want to be involved in anything illegal, especially some businesses would have to deal with their home regulations,” he said.