Campro Discussions on April 6-13 , 2011
Compiled by Vong Socheata
In March 2011, the Cambodian Ministry of Foreign Affairs (MFA) issued a Diplomatic Note which bans foreign men who are 50 or older – or who earn less than $2,500 per month – from marrying Cambodian women. It provides that the Diplomatic Note was announced in an attempt to avoid undesirable consequences of human trafficking. This issue became a topic seriously debated among the Campro
There were several points the group discussed. The first and very significant point touched on the issue of the Diplomatic Note whether it is in conformity or on the contrary with the Cambodian Constitution which entitles Cambodian citizens to freedom of marital choice.
The following are comments from Campro members:
Vong Socheata: Please see an article, “No Country for Old Men” by The Economist on this story (http://www.economist.com/blogs/banyan/2011/04/legislating_morality_cambodia). I seriously wonder how morality is legislated in Cambodia. If the government were strongly committed to promoting Cambodian morality as a whole, there will be other issues of morality that would need to be legislated.
Chan Sophal: I wish to hear from lawyers or legal experts on what Prakas (or such Diplomatic Note) in Cambodia can do. Prakas is issued by a minister. It should not supersede laws or constitution that is passed by the National Assembly and the Senate, representing people. Who is the body in Cambodia to check whether Prakas, which requires people and businesses to follow, is in congruence with laws and Constitution?
Keo Chenda: There are a few reasons for me to read the directive. First as a researcher it is necessary that we consult the original documents. Second, if the article is correct as women cannot marry foreigners who are 50+ or earn less than $2,550/month, it is problematic. If it is the case, then the Prakas appears to contravene a number of legal documents. For instance, paragraph 2 of Article 23 of the 1976 international covenant on civil and political rights states that: “The right of men and women of marriageable age to marry and to found a family shall be recognized”. The Cambodian constitution in its article 45 stipulates that “All forms of discrimination against women shall be abolished. … Marriage shall be conducted according to conditions determined by law based on the principle of mutual consent between one husband and one wife”.
The 1989 Cambodian marriage and family law has now been incorporated into the 2007 civil code. I did not have the 2007 law with me, but if I am not mistaken the content of the 1989 law which is now part of the 2007 law did not change much. Assuming that it is more or less the same, the Prakas contradicts the following articles. Article 4 of the 1989 law stated that: “A man and woman reaching legal age have the right to self-determine the marriage. … No one can be forced to marry or prevented from having marriage as long as such marriage is in compliance with standards provided by this law”. Then in its article 6, A marriage shall be prohibited only when:
- a person whose sex is the same sex as the other;
- a person whose penis is impotent;
- a person who has leprous, tuberculosis, cancer or venereal diseases which are not completely cured;
- a person who is insane, and a person who has mental defect;
- a person who was bound by prior marriage which is not yet dissolved”.
Given the above, it seems the Prakas goes against the international norm. It is also seemingly unconstitutional and contravenes the relevant law. I am more than happy if legal experts would correct my mistakes or misunderstandings.
Lim Solinn: I think it is just a matter of time for MFA to realize that this directive will be counterproductive to its apparent objectives (again!). In my opinion, this Prakas undermines the country’s constitution and her peoples’ basic human rights.
Khieng Sothy: It seems that some of the government’s reactions in policy and regulations to social problems are short-sighted without serious consideration or study of the long term impacts. Despite the (good?) intention, they might just treat the symptoms of the diseases rather than fighting the root cause. Another example was when the PM (after the plea from his wife) banned/suspended 3G over concerns of “sexual exploitation of women and children in Cambodia”. Perhaps when more of CAMPRO members join the government’s institutions or contribute any other ways to influence policy making and regulations that we can see improvements.
Chan Sophal: My second question was who checks if the Prakas or Sor Chor Nor or Sub-decree is in conformity of the law or not. If a Prakas is contradictory to the law and/or the constitution like the one banning Cambodian women from marrying foreign men aged 50 years or above or foreign men earning less than US$2,500 per month, who is expected to take corrective actions?
Ngo Sothath: If the enforcement of the DN is fully effective, will it deliver the desired outcome? Human trafficking reduces? Aren’t the better-off and younger-age human traffickers?
Keo Chenda: It is too early to see the unintended consequences of the directive, and one can only assume its negative consequences for the time being. For me the question is why the directive was issued at this particular time. There is no reliable data that human trafficking, especially through mail-ordered bride, is growing which then galvanized the government into taking serious action on international marry. From my little knowledge on human trafficking issue, I have a theory to explain the government’s move.
Every year in June the US State Development issues a Trafficking in Persons (TIP) Report which measures country’s anti-trafficking efforts against the minimum standards set in section 108 of its 2000 Trafficking Victim Protection Act (TVPA). Most countries in the world are classified into any of the four tiers (Tier 1, 2, 2 watch-list, and 3). The US will cut its non-humanitarian aid to any country falls into Tier 3. In 2002 and 2005 Cambodia fell into Tier 3 and has subsequently been updated to Tier 2 in 2010.
Normally by March of the year, the TIP report is already in a drafting state. At this stage, the State Department is said to communicate a country’s potential ranking with that country so that the country can take necessary actions to improve its potential ranking. This could be a factor that motivate the Cambodian government to issue such a directive in order to show how serious the government is when it came to human trafficking. If I am right, then the directive should be nullified sometimes after June this year.
Ngo Sothath: In my view, I just do not see the relationship between the human trafficking and the age and the earning of the foreign men as assumed in the DN (human trafficking is free or significantly less among foreign men whose ages are under 50 and who earn more than USD 2,500 a month). I could be wrong as MFA or other agencies may have the data to show this particular casual relationship for the case of Cambodia and thus led to the issuance of this directive. Any empirical evidence to show this?
Keo Chenda: There are some anecdotal evidence that Cambodian women who married foreign men, most notably Taiwanese, Chinese, and South Korean, were placed in exploitative situations or prostituted against their will. In some case, women were deceived to marry foreigners who claimed to be well-off. Only after the women joined their husband’s family that she started to realize how destitute her husband actually was. Depending on further details, such situation could constitute human trafficking based on the 2000 UN trafficking protocol and the Cambodian 2008 anti-trafficking law. To my knowledge, these are primary reasons allowing anti-trafficking and anti-prostitution groups to advocate for a firmer action by the government on international marriage.
Sim Vireak: I think the article simply criticized the government’s measure without raising any alternatives. The question we should ask is what are the other possible options? The action taken by MFA does look very desperate if we try to find the causal relation and the extent the effect can yield. Personally I think it is an immediate action the government want to stop/or make it difficult before the marriage take place and got beyond government’s control. If we talk about liberty, even countries with good track record of human rights cannot control people’s marriage. And acts of exploration did happen in those countries without their government’s actions as well.
So the first thinkable way for immediate term–not for the long term–is to pull the plug off in Cambodia. As for the long term, it is very difficult. Even America cannot find a good criteria to distinguish real and fake marriage. And I think many Cambodians also want to criticize America for not being considerate about their loves as well. But how are we judge TRUE love? What are the legal criteria?
Ngo Sothath: The DN should be based on a more robust evidence other than anecdotal one. The measure could also be country-specific if the evidence shows. However, I still do not see the relationship of human tracking with age and earning. Are those Taiwanese, Chinese, and South Korean men aged 50+ and earning less than USD 2,500 a month? Possibly, they can be among those ages and earning group, but won’t those under 50 years old and earning more than USD 2,500 a month be linked or related to human trafficking? I doubt how the diplomatic and consular missions would find such policy response from MFA when they have read it.
Keo Chenda: I have not seen any trafficking research that profiled foreign men who were involved in marriage trafficking of Cambodian women. MFA or other government agencies such as MOI and MOWA may have such data, which were used as grounds for developing such a lame Prakas. I am allergic to criticizing the gov’t, and therefore that’s all I can say.
Kruy Virak: Many thanks for having brought to everyone’s attention the problems regarding the DN. Anyway, it is actually an old story as most of us have been aware of the quick actions by the government to make donors happy ranging from corruption, illegal drug to human trafficking. In the past few years we have seen many instances where many custom officers were arrested or demoted so on and so forth. So, the question is “Are there no other short-term alternatives/solutions besides issuing such a kind of DN? Well, the answer is there is no such thing as impossible given enough resources and political will are in place to carry things out. Short and medium term solutions could be intervention through educational materials, using media to advocate for anti-human trafficking and effective enforcement of the related laws and regulations and so on and so forth. But whether the solutions are applicable relatively depends on resource available, incentives and political will of government policy implementers.
This said, i cannot refrain myself from revisiting things that i have mentioned in this recent past. When state institutions are weak, state apparatus could be manipulated for personal gains, thus enriching a small hand full of powerful politicians and their cronies and strengthening party at the expense of the poor.
So let’s us find a limit to political legitimacy and patronage and help strengthen our state institutions for the next generation’s future. To this end, reform in civil service is compulsory if the nation is to catch up with neighboring countries.
Chan Sophal: I totally agree with what Vireak said below. I can’t imagine Cambodia achieving equitable development without making effective public administration. High but lap-sided economic growth can happen without effective government services but that will at best make Cambodia trapped at the lower-income level after 10-15 years and will at worst cause people’s uprising like in Tunisia, Egypt, Syria, etc.
I can see where Sothath’s argument came from as he has been doing a lot of research with CEA in the past two years with an aim to inform policymakers or decision makers. More and more, we see that policymaking in Cambodia would benefit from credible research but would run high risks of going off track if it is based on no research or just based on superficial research.
I have worked quite a lot with leading research institutes in the region. In Vietnam and Thailand, I know for sure that their top research institutes are busy with conducting research for various ministries for policy making. Many ministries in these countries have a budget line to commission research before they make a policy or major directive.
I hope Cambodia will also develop this culture of evidence- based policy making when more and more people with solid higher education come into important positions in the near future. Making conclusions based on balancing both theories and empirical evidences is what essentially they have been trained for in their postgraduate education. It is just a matter of time that policymakers and decision makers will comprise of people highly educated. No doubt some of them will be from our CAMPRO group, though some are already in important positions.
Kruy Virak: I could not agree more with Bong Sophal. His economically insightful dimension added to the issue seen from governance perspective is a solid piece of analysis, making it technically sound.
It goes without saying civil service reform is no doubt the one with a huge scope in nature and will take tremendous political will, incentives and resources, especially great coordination among state agencies/institutions to make a good start possible. I am deeply moved and inspired when Samdach Techo said to complete a thousand-mile journey, one has to begin with a step. So, as a beginning step for the whole journey I hope a serious consideration will be given to the reform in the near future after D&D reform takes deeper root. If we do not start thinking and planning for it from now, we will never be able to start given complacency we all seem to be prone to. I hope to hear more from other senior economists or political scientists on the issue, especially those who are enthusiastic to suggest and share constructive criticism and solutions to the problem.
Ly Tayseng: I just try to reply to some of your questions if it is not too late as I have been quite busy lately, I just wish to share a few cents on the recent restriction of international marriage. This is a big topic, which brings a lot of controversial views, similar to the same sex marriage, limitation of legal age for election, legal age for marriage, etc.
A: General Views: I observed that Campro members have raised a number of interesting and complicated questions to the recent restriction on international marriage (foreigner of not over 50 years old and earning at least US$2500/m), by Cambodian Ministry of Foreign Affairs and International Coordination (MoFA). Some believes the MoFA is short-sighted, has not based its decision on robust evidence, and other believes that its recent decision violates the law and Constitution of Cambodia. Some may ask why 50 years and US$2500 old cut-off, and not 60 years old or US$3000/m? These gigantic questions are not easy to answer at all. So, I will just take some of them.
B: The nature of decision of MoFA and its place in the law: The recent decision of MoFA is made in the form of a “Diplomatic Note”. It is not equivalent to a Prakas (“Ministerial Regulation”) which is used for domestic matter. Based on the current practice of Cambodian legal norms, a Prakas is issued by Minister at ministerial level. Prakas must confirm to Anukret by Prime Minister/Council of Ministers, Royal Decree (Preah Reach Kret) by laws (by Parliament) and Constitution by the Constituent Assembly. In short, the hierachy of legal norms would be Constitution > Law > Royal Decree > Anukret > Prakas >…….
Please note that i am not aware of any regulations in our country which clearly determine the form which an executive body has to issue when it makes its decision. The current practice shows that Council of Ministers, Ministry, and Provincial and Municial Authity can issue Sor Jor Nor / Notification. All these decisions are Executive Regulations.
A Diplomatic Note (“DN”) is a mean of formal written communication between one government to another through each respective diplomatic missions (Embassy, Counsulars, MoFA, etc). DN is governed by the rules of International Law (1966 Vienna Convention on Diplomatic and Consular Relations, law of treaties, etc). If we compare with the form of communication under national law, it could be a Notification (So Jor Nor…).
C: Who can check and overrule the government decision? In theory, there are two types of legal norms: Legislative Act and Executive Act. Since the citizen votes for representatives to form a Parliament, and the Parliament appoints the Government, all executive act must be in conformity with the legislative Act.
Article 150 of Constitution provides that the Constitution is the Supreme Law of the Kingdom. All legislations and executive regulations must conform to the Constitution. If they do not, then the Constitutional Council can review their constitutionality (Article 136 of the Constitution).
Most often, we can see that the Constitution provides that a specific matter will be regulated by a specific law. The law provides that a specific matter will be stipulated in a Sub-Decree, and the Sub-Decree provides that a specific matter is to be stated in a Prakas.
D. What would be appropriate recourse against the DN? I think that the appropriate recourse against the DN for those whose rights are affected would be: DN is a diplomatic communication, he or she could request their Embassy to intervene and his or her Embassy could directly talk with MoFA if it has convincing reason that the marriage is genuine and there is no risk for Cambodian bride will be exploited or trafficked; Appeal to Council of Ministers/ Prime Minister against ministerial decision; or Appeal to the Cambodian court to overrule the decision of the MoFA.
If a foreign man or a Cambodian woman whose application form marriage is rejected by MoFA, he or she could take the above action. But i think it is unlikely that he or she could win on the grounds stated in F below.
F. Is it legitimate to set a limit at 50 years old, US$2500? Would this violate Cambodian Constitution and International Convention on Civil and Political Rights (ICCPR)? I think this question is very controversial and deserve a deeper comparative study and research to formulate a social policy in Cambodia.
The 1989 Law on Marriage and Family defines “the marriage as a solemn contract between a man and a woman in a spirit of love in accordance with the provisions of the laws”. Article 45 of the Constitution stipulates that a marriage must be made in accordance with the law and on voluntary basis between one man (husband) and one woman (wife). On October 3, 2008, Cambodian government issues a Sub-Decree governing the formalities of international marriage. Again, the Sub-Decree provides that international marriage between a Cambodian and a foreigner in the Kingdom of Cambodia must be on voluntary basis and in accordance with the laws and regulations of the King of Cambodia. The 2008 Sub-Decree empowers MFA to set out detailed conditions, rules and process for international marriage.
In light of the foregoing, I am of the view that the DN of MFA does not contradict the 1989 law and 1993 Constitution but supplement to them. One may take a view that the 1989 law and the 1993 Constitution and the ICCPR do not limit the maximum age or earnings in order to be eligible for marriage. But I would argue it is clear that our Constitution requires the marriage to be conducted in accordance with the laws. So the Royal Government of Cambodia is legally empowered to regulate the marriage in a way which is appropriate for their social, cultural and political purposes.
The restriction may sound strange for western people or other where their levels of economic development and education are matured. For Cambodia where most rural Cambodian women have not received sufficient education and are in poverty, it is easy to fall under the trick and trap of foreign men. So, it would be wise for the government to take appropriate action in such circumstance.
For me, I do not see 50 years old and US$2500 per month is ridiculous. The earning of US$2500 per month for western men, Korean, Taiwanese, Singaporean, Japanese, etc are not much. This would only be reasonable to ensure that his Cambodian wife may share a decent living with her husband after marriage. For the age of 50 years limit, for those of over 50 years old from overseas and want to marry a Cambodian woman, the purpose of such marriage is physically, morally and socially questionable.
G. Conclusion: Based on the above mentioned, I conclude that (i) MFA’s DN would not violate the laws and Constitution of Cambodia, (ii) Cambodian government should take appropriate action to prevent human trafficking and unjust exploitation of Cambodian women by foreign men, and (iii) the cut-off of 50 years and US$2500 is not unreasonable but debatable.
DISCLAIMER: My views above are not intended to be a Legal Opinion but just a sharing of views. I will not be liable if someone uses it as basis and lose their case before the court or the MoFA.
Ngo Sothath: Thanks to Tayseng’s explanation from the legal perspective, with which I do not at all disagree. However, my doubt on the cut-off of 50 years and US$2500 is whether effective enforcement of the policy will address its intended outcome (to avoid undesirable consequences of human trafficking). Empirical evidence of causal relationship should help answer this though it is now too early to assess the impact. If the evidence indicates strong relationship in some specific countries, should the policy be meant to those certain countries so that it does no harm to other lovers in poorer and rich countries in the region and around the world?
Chan Sophal: I’d like to thank Tayseng for sharing his professional contributions and convictions on this issue. I’m sure the time you put into writing your legal opinion like this would be worth at least a few hundred dollars for a client. This is my rough estimate to highlight that you sacrifice your time for the benefits of CAMPRO members. Thanks a lot.
As CAMPRO is good for debating professionally, I’d like to provide my arguments as follows.
1) Just to be clear on the Diplomatic Note in discussion. The Diplomatic Note issued by the Ministry of Foreign Affairs and International Cooperation (MFA for short) was signed by no name on 7 March 2011 and states that “…..in order to avoid undesirable consequences of human trafficking, the Royal Government of Cambodia has decided that foreign men wishing to marry Cambodian women must be under 50 years of age and have a monthly income of at least US$2,500 to be considered eligible.”…. After reading this, some may ask “how on earth could this note come out?” By the way, I think this short note should present a binding Prakas or regulation issued by the Royal Government of Cambodia. Or the note itself is the decision of the Royal Government of Cambodia??
This Note means foreign men have to satisfy both conditions (….and….) to be eligible. If they satisfy one of the two conditions, it is not sufficient and they are not eligible. An example can be that an expat working in Cambodia falling in love with a Cambodian woman and they both wanted to get married. The man has a good job earning $5,000 a month (satisfying one condition) but is 50 years old (failing to satisfy another condition). He will not be considered eligible for marrying the Cambodian woman he so much loves. This would be just too cruel against humanity. Or a true lover male from China aged 25, works as a supervisor in a Chinese garment factory in Phnom Penh and earns $2,400/month. He satisfies one condition (below 50 years) but fails to satisfy the second condition. So he will not be considered eligible for marrying a Cambodian woman, say his assistant that he so much loves and that loves him very much too. Many Cambodian Americans aged below or above 50 may now find it hard to marry Cambodian women.
There can be rich foreigners aged 50 or above who genuinely want to marry Cambodian women and retire in Cambodia (like many do to Thai women, Vietnamese women, etc.) but they are not eligible to marry Cambodian women because they are above 50.
2) You suggested that the MFA is right in issuing the decision/note on the ground that MFA was required by the law and sub-decree to issue a regulation. Yes, MFA is required by law to regulate international marriage but MFA cannot issue something that violates the law and/or constitution. We are not questioning MFA’s eligibility to provide a Diplomatic Note but we are questioning the content of the note with regard to its conformity to the constitution. It is implicit that whatever MFA issues must conform to the law and constitution. The bottom line is MFA cannot get away with issuing “anything” because the law or sub-decree requires it to issue something. Otherwise, we can imagine what can be done in terms of content and consequences.
3) The regulation of international marriage by MFA should be about the procedure and requirements that do not violate the basic human rights and freedom, and non-discrimination principles protected by the Constitution and international conventions. This would include the requirement of presentation of criminal record (police clearance), certification of current marital status, passport, income statement, and perhaps health examination, etc. I’m sure there is at least one regulation already. Like local marriage, people have to receive permission by the Commune or Sangkat authority and they are required to present some legal documents and they have to make a public announcement of the wedding at the front gate of the bridge’s residence for at least one month before the wedding.
4) I appreciate the concern over trafficking of Cambodian women through fake marriage. I’m sure this has happened. But I don’t know how many Cambodian women have been trafficked through marriage. And I don’t know how many Cambodian women have been trafficked after marriage by foreign men aged 50 years old or above, and how many have been trafficked by foreign men that earns less than US$2,500 a month. It’s difficult to imagine foreign men aged under 50 and earning more than US$2,500 are not among those who cheat Cambodian women through marriage. The solution is not to issue a decision that clearly violates the Constitution and international conventions.
5) There can be many other options that prevent trafficking of women through marriage. We can look at what the US Embassy does to prevent fake marriage of Americans with Cambodian men or women in order for the latter to land and live in America. They require a lot of evidences (love letters, email correspondences, photos, etc.) to indicate that it is true love. They interview the applicants very seriously to assess whether or not they have enough knowledge of each other, so on and so forth, in order to be sure that it is true love and/or true marriage. They can disapprove the migration because of their assessment.
Likewise, responsible MFA officials can examine marriage proposals by looking at many papers and interviewing before approving or not approving foreign marriage. They do not have to issue such a decision that clearly violates the constitution and the right of true lovers. Or is it because responsible officials are not paid enough and not capable enough to work hard and make sound assessment of the marriage applications? Even so, this is not a good enough reason to justify the solution that seriously violates the constitution and international conventions. One should not cause evil because of one’s incapability to carry out the job in a constitutional way.
Vong Socheata: One thing i still doubt seriously is how trafficking prevention can be taken by the measurement of age and income. I really want to see how these two indicators can be achieved by the gov’t in combatting trafficking. I tend to believe that such DN was made by some policy makers at the ministerial level. I just hope those policy makers do study and analysis on measuring the consequences and impact made out of their policy. The entire process of this policy formulation lacks of transparency and rationales. There should have been enough grounds.
Sim Vireak: The discussion so far has focused on the following points:
- Legal status of Diplomatic Note (DN): This was very well elaborated by Mr. Ly Tay Seng.
- The possible abuse of the regulation over individual rights/freedom of marriage: This was shared by many and has been strongly advocated by bong Chan Sophal and Socheata from the beginning.
Although many of us share common ground that the regulation is too vague, little input on alternatives has been raised except for some opinions related to education by Mr. Kruy Virak. Please correct me if I overlooked some alternatives raised by our peers. Now, please allow me to challenge myself with some alternative opinions on the topic.
First of all, the main purposes of this regulation should be two-fold, and the regulation should balance between these two purposes.
- To protect individual rights/freedom of marriage. (I don’t need to elaborate more on this)
- To protect citizen’s welfare and dignity, to ensure the freedom from slavery, exploitation and violence.
While constitution upholds the rights/freedom of marriage, it is also obligatory that state shall protect its citizen from slavery, abuse, exploitation and violence. For the second purpose, we could have two sorts of measures: preventive and curing measures.
A. Preventive Measures: The DN is a sort of preventive measure. However, its flaw is that it should distinguish between couple who want to reside in foreign countries other than Cambodia and those who wish to settle in Cambodia.
(Case 1) Couples who want to reside in foreign countries: Possible measures: Quantitative regulation on incomes and age (like the DN). Qualitative regulation is difficult as I said in my previous mail because no one knows how to define TRUE LOVE.
Merits: Why 50 year old? People over 50 year old are not very fit for reproduction, are prone to health problems, and the age is close to retirement. It is thus highly possible that the wife becomes obligatory nurse of the husband or she may be forced to work after his retirement. For this age, people might already have their previous family, and thus there is possible conflict between the wife and the previous family. (this argument is not strong though)
Alternative opinion: We should take into consideration on relativity of age as well. For example, if the woman is 40, it should be ok if the man is 50. The measure can be too protective. We can loosen the criteria if the bride is well-informed about the man’s health, income and family situation. It should also be allowed if the bride has the level of education to understand the risks and that she is willing to do so.
Merits: Why 2,500 USD? The basic criteria is that the husband should be able to feed two persons. The amount should be able to make sure that the man can maintain a decent living condition, which does not give the pressure for the wife to get a job. The smaller the amount, the stronger the pressure for the woman to get a job to balance family expenditure. Wife should also work if she is willing to. However, before the wife get used to new society, and/or acquire fit legal/social physic to work, the man should be able to raise the family with this income.
Alternative opinion: The amount should be adjusted according to countries. For example, we don’t need to have 2,500USD to have a decent life in Laos. The amount can be reduced if the following prospects are fulfilled:
- The wife has skills and knows the language that enables her to work at the foreign countries.
- The wife is willing to share family burden.
- The wife is well-informed of her husband’s income and the extent of which the amount can cover the actual expenditure.
(Case 2) Couples who want to settle in Cambodia: This regulation should not apply to this case because even if the risk or danger occur, it is within the jurisdiction of Cambodian government, and the wife might have her family here and is better-informed in Cambodia as to where/what/how she should do when the danger happen. In foreign countries, she might be put in an inferior legal/social position compared to her husband.
This however presents another loophole for possible fake marriages. What if the couples decide to live abroad after they got married and settled for a while in Cambodia? For this case, I think it should fall into the jurisdiction of the destination countries.
B. Curing Measures: Serious punishment of those who found guilty of human-trafficking, domestic violence and mental/physical exploitation. This should be conducted both in Cambodia and the partner countries. Mostly, I think, exploitation occurs in foreign countries, which is rather beyond jurisdiction of Cambodian government unless the wife comes to Embassy for help. However, Cambodian government also has responsibility to pursue the root of trafficking when the problem is found in foreign countries. Wide dissemination in the media about the punishment to prevent future repetition.
Keo Chenda: Life in Cambodia is already difficult enough even without this ban on international marriage. From my little knowledge on human trafficking, I would say the best way to proceed is to call off the DN. There are a few reasons for this: (1) worldwide there is very limited research on marriage trafficking; (2) in Cambodia, there are only a few anecdotal evidence which links international marriage to human trafficking. Not a single research that looked into marriage trafficking in Cambodia has been conducted; (3) so far, there has been little or no conviction for those involved in marriage trafficking. Most of those who have been convicted for human trafficking from 1997 to 2007 were women involved in trafficking for sex and labor purposes; (4) The prevalence of human trafficking in Cambodia is not yet known. However, what we know is that most Cambodians, who have been trafficked internationally, were actually trafficked for sex and labor exploitation- not for marriage. Given these, there are no sufficient grounds which warrant such a ban.
On a similar matter, the following was my new year wish I sent to friends working on human trafficking in Cambodia.
When it comes to the issue of human trafficking in Cambodia, I have seven wishes. I wish that:
- Cambodia had an effective definition of “human trafficking”, developed taking into account the UN trafficking definition and the Cambodian context.
- People stopped conflating human trafficking, human smuggling, and (forced or unforced) prostitution.
- Empirical studies on human trafficking in Cambodia would take the place of the moral panics, anecdotes, and assumptions on issues concerning the prevalence of, nature of, estimated profitability of, and modus operandi of human trafficking in Cambodia.
- A larger proportion of the estimated 200 institutions, working on human trafficking in Cambodia, would work at national level to support the government to improve the 2008 anti-trafficking law, its enforcement, and the criminal justice system.
- There would be increased “genuine” cooperation/collaboration among agencies working on human trafficking in Cambodia.
- An increased number of NGOs would tackle the root causes of human trafficking (i.e., poverty, restricted economic opportunity, poor legal consciousness, and ineffective anti-trafficking legislation and enforcement), rather than try to address the symptoms and negative impacts of the phenomenon.
- The harsh punishment in the 2008 anti-trafficking would be reduced. Problematic law, implemented in an environment of weak criminal justice system, appear to do more harm than good, and produces various unintended consequences. For the law to have a deterrent effect, for now, the punishment should be more lenient but swift and certain”.
Chan Sophal: I very much like Vireak’s summary and balanced take. I especially like his point reminding that the Constitution also mandates the Cambodian Government to protect citizens’ welfare and dignity.
The problem is every public decision or policy cannot avoid adverse impact. The positive take is that it is alright if it benefits the majority and if the adversely affected minority can be taken care of or compensated by other means. The development principle is that NO INNOCENT PERSON SHOULD BE MADE WORSE OFF by public policy. The normative question is whether or not the minority should be adversely affected by any public policy at all. It’s really about judgment calls and it depends on the standard every country sets. This is why we need to debate. It is why public policies should be based on sound research and consultations.
I appreciate the merit to ensure that Cambodian women will enjoy their life overseas with their foreign husbands. But this should be done in better alternatives, many of which you already pointed out. The Diplomatic Note in question explicitly and specifically aims to prevent human trafficking. But it may cause huge problems to genuine lovers. It may prevent trafficking of a few women (or even may not at all) but it violates the right of perhaps thousands of women and men both Cambodian and foreigner. There should be a better way to prevent human trafficking without imposing such negative consequences to the innocent.
With regard to whether Cambodian women may end up being slaves of old, incapable or unproductive foreign men, we should bear in mind that younger women can legally divorce their husbands. Marriage does not mean they have to be together forever, wasting their whole life (unless Cambodian women are locked up). Young Cambodian women can have a better future overseas after divorcing their useless or bad husbands. Or they can be happy by being loyal to their husbands despite their shortcomings. It’s really a judgment call and difficult for government to interfere when it comes to their personal values, life, choice and freedom. Government can intervene only when it clearly violates the law.