Revisiting Cambodia’s Laws on Nationality and Immigration

Jeff Mudrick – April 30, 2014

Since 1996, the Laws on Nationality and Immigration have governed the civic status of ethnic Vietnamese in Cambodia. Increasingly, the CPP’s opposition has railed against the government’s administration of those laws in general terms, rarely offering any specific proposals as to what they would do differently in their treatment of the large ethnic Vietnamese population other than “enforce the law.” The CPP, meanwhile, has generally remained silent on the matter, being largely responsible for overseeing policies that have enabled both undocumented immigration and continuing statelessness on the part of large swaths of the Vietnamese community.

In recent days there have been signals that change may be afoot. This week’s swearing in of heads of new Interior Ministry departments of identification and immigration came on the heels of opposition leader Sam Rainsy’s surprising statements that 250,000 ethnic Vietnamese might be eligible for citizenship under a CNRP administration. 

Admittedly Mr. Rainsy’s statements were aimed squarely at the Western press and the response on Khmer radio call-in shows, as one measure of public opinion, was unsurprisingly unenthusiastic. The CPP meanwhile, has had 18 years—a generation essentially—to figure out a way to implement the two laws and by any measure has failed to do so effectively. At this point it is not yet clear if the creation of the new departments suggests a change in policies that would impact the Vietnamese minority.

Given the histories of both the CPP and the CNRP, there is ample reason to suspect Cambodia will see no real progress on this issue beyond lip service. Still, this is a moment in time where both parties have at least come forward to acknowledge the status of undocumented Vietnamese as critically important, even if there is no engagement between those parties as to how the issue might be addressed.

A major reason the issue has persisted since the passage of the Law on Nationality in 1996 is that the law itself is severely flawed. Superseding a more liberal law that had been in place since 1954, the new law was aimed at limiting Vietnamese access to Cambodian citizenship by requiring that a child born in Cambodia would acquire Cambodian citizenship only if both parents were born in Cambodia (the 1954 law required one parent) and living legally there (the 1954 law made no reference to legal status). It is well understood that when Vietnamese Cambodians returned to their homelands in Cambodia after having fled the pogroms of the Lon Nol regime (1970 to 1975) or having been deported under the Khmer Rouge regime in fall 1975, few returned in possession of documents proving their birth, let alone the birth of their parents. Requiring documentation for this population of former exiles was and continues to be an impossible hurdle for most to overcome. The result is now three generations of Vietnamese Cambodians who live as stateless individuals.

At the same time, equally well understood, many Vietnamese have obtained documents merely by relying on corrupt officials to issue ID cards for a fee. Indeed a survey reported in the study “Boats Without Anchors” published this year found in three sizeable Vietnamese communities there was no reliable relationship between the possession of a Cambodian ID card and the citizen’s place of birth or facility with the Khmer language.

Any attempt to step up implementation of the Laws on Immigration and Nationality simply based upon ID cards or birth certificates is therefore ill-conceived. However, while acknowledging the basic flaws of the Law on Nationality, it should be possible even within the existing framework to construct a mechanism that would help deal with this problem given the political will to do so.

In the case of Khmer nationals seeking birth certificates after the usual period for their issuance, Article 43 of sub-decree 103 provides that local officials, may, in the absence of other documentation, rely on attestations by two individuals from the community where the birth in question would have taken place as sufficient evidence to issue a birth certificate.

There is no logical reason why an identical sub-decree could not direct that this practice be followed in the case of ethnic Vietnamese seeking to document births as required under the Law on Nationality. Indeed, there is compelling evidence that this is the only way to ensure that ethnic Vietnamese rightfully entitled to citizenship might achieve it without changes to the Law itself. As it stands, by having no method by which to record the births of the children of non-citizen Vietnamese residents, Cambodia stands in violation of a number of international agreements including the U.N. Convention on the Rights of the Child, a situation which should not be allowed to continue regardless of which party is in power or the political risks involved in addressing it.

This does not solve the problems of the many thousands of ethnic Vietnamese in Cambodia whose statelessness persists and is passed on to succeeding generations but it is an essential step in doing so. The creation of the new departments of immigration and identification provides an opportunity for the government to take a fresh look at the problems of illegal immigration and statelessness. A new sub-decree within the context of the existing Law on Nationality could be an important starting point. For CNRP, it’s time to go beyond vague criticisms and focus on specific changes such as the one described to show it is serious in its promises to tackle these issues.

http://www.cambodiadaily.com/opinion/revisiting-cambodias-laws-on-nationality-and-immigration-57789/