หนังสือ-ProceedingsLawCMU 2019

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia are more courses on business now available to muster up students to several areas of expertise. Most of these courses are a free elective course that usually provide in the third or fourth academic year to follow global trends, such as Law and Accounting, Economic Analysis of Laws and Implication for Business, Seminar on Business Law and Investment in the ASEAN Countries36, Laws on Information Technology37, Natural Resources Law, Energy and Petroleum Law, Law on Real Estate Business, Law on Fashion Business, Law on Digital Economy and Startup Business, and Law on Agriculture38, just to name a few. Generally, students will be free to choose any courses to enroll in the third or fourth year subject to their interests39. Seemingly that after the One-Belt One Road policy were initiated by China and ASEAN’s (or even Asian) trade and investment became liberalized, pragmatism again starts booming among educators in Thailand that the curriculum in recent years has moved toward practices. As Thailand lives in a splendid geography, courses like logistics, ASEAN law, intellectual property, media and telecommunication and more are observed to have been included in many institutions’ syllabus to add values40. However, none can likely, in return repay hands-on experiences to students as the matter of fact that institutions lack of expertise and practical lecturers. Sad but true, by being restricted according to the OHEC regulations on the qualification of part-time lecturers41 and the attitude of Thais towards teachers42, will there be any legal practitioners 36Law and Accounting (3404201), Economic Analysis of Laws and Implication for Business (3404202), and Seminar on Business Law and Investment in the ASEAN Countries (3401411) are offered by Faculty of Law, Chulalongkorn University. Faculty of Law, ‘Bachelor of Laws Program-Course Description’ (Chulalongkorn University 2015), <http://www.law.chula.ac.th/home/page.aspx?id=59> assessed 20 February 2019). 37Laws on Information Technology (LA363) is offered by Faculty of Law, Thammasat University. Faculty of Law, ‘Program Description’ (Thammasat University 2015) <https://reg.tu.ac.th/th/Picture/AttFile/c9b0a12f- 81e0-4d47-92ba-079e30983576> assessed 21 February 2019, 8. 38Natural Resources Law (LL4407), Energy and Petroleum Law (LL4410), Law on Real Estate Business (LL4517), Law on Fashion Business (LL4525), Law on Digital Economy and Startup Business (LL4805), and Law on Agriculture (LL4806) are offered by School of Law, Assumption University—ABAC. Assumption University, ‘Undergraduate Bulletin 2018-2019’ <http://www.au.edu/images/pdf/Bulletin2018-2019_001.pdf> assessed 20 February 2019, 244. 39 These are based on the comparative study of the three bachelor of law programs (LL.B.) in Chulalongkorn University, Thammasat University, and Assumption University—ABAC in Thailand. Faculty of Law, ‘Bachelor of Laws Program-Structure’ (Chulalongkorn University 2015) <http://www.law.chula.ac.th/home/page.aspx?id=57> assessed 20 February 2019. See also Faculty of Law, ‘Program Description’ (Thammasat University 2015) <https://reg.tu.ac.th/th/Picture/AttFile/c9b0a12f-81e0- 4d47-92ba-079e30983576> assessed 21 February 2019, 8. See also Assumption University, ‘Undergraduate Bulletin 2018-2019’ <http://www.au.edu/images/pdf/Bulletin2018-2019_001.pdf> assessed 20 February 2019, 244. 40See n 36, n 37, n 38. 41See Part II. B. QUALITY ASSURANCE IN LEGAL EDUCATION. 42Thai people tend to view that teaching career is somehow way behind doctors, engineers, technicians, and lawyers, which are well credited and more in favor in the country. As the consequence, teachers are paid much more lower in return though their jobs are actually about nurturing and founding children to be a quality citizen. 93

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia swopping their seats from law firms to law schools in universities if their salaries can possibly be cut for two-third? If yes, there will be very few in number. Though the author is one of them, comparing to those who swop from academia to a firm, the number of these niche lecturers are now in need to put Thailand’s legal education competitive in the world of free market. According to the regulation of OHEC which requires more “qualified” career- professors or a full-time lecturer to be responsible in law programs, by applying Western style of education, universities in Thailand are living in a difficult situation to employ these people who are perfectly equipped with perfect qualifications on research, academic work, and practical skills, against the low payment given in return. Opportunity to employ judges and public prosecutors as a part-time lecturer that used to be available is more or less desperately shut out because of their failure to meet this academic requirement43. On top of that, along with the less-born-child phenomenon in Asia, Thai universities moreover have to fight and are struggle with the decreasing number of new- born child. Various courses in the law programs now attempt to attract high school students to be in their campuses. There are several numbers of law course that now offer legal study in English44, in bilingual (Thai-English)45, and major number in Thai46. Many of them now partner their courses with oversea universities47. The total number of credits required for graduation is generally between 135 to 145 credits48. In general, to be a candidate for admission to law school in a university, student is required to complete his/her high school or M.649 (Senior High School) degree or any equivalents. Students will also be required to take the National Assessment and Educational Test on 43See Part II. B. QUALITY ASSURANCE IN LEGAL EDUCATION. 44International LL.B. Program in Business Law is wholly conducted in English. It was initially introduced by Thammasat University in 2013 and to date remains the one and only English program available in the country. 45The LL.B program provided by Assumption University or ABAC, though by law is considered as a Thai program as the Ministry of Education positioned law schools to serve local consumption on legal services and because law is deeply connected to local culture and tradition that all the programs are required to be in Thai, it is in practice bilingual. It on one hand contains minimum requirements of law courses in Thai language to be qualified by related Thai authorities, and on the other hand provides specialized and free elective courses, as well as general education courses, in English. 46The entire LL.B. program is wholly conducted in Thai. 47Sakda Thanitcul, ‘ASEAN Charter and Legal education in Thailand’ (ASEAN Law Association 2009) <http://www.aseanlawassociation.org/10GAdocs/Thailand1.pdf> assessed 20 February 2019, 7. 48See n 39. 49M.6 is a senior high school degree in Thailand which is equivalent to the high school diploma (Grade 12) in the US. 94

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia graduating from high school (Central Admission System)50 and/or direct entrance examination (Direct Admission System)51, which is now available a number of times a year (together called the “Admission Test”), to gain certain scores to be admitted. Sometime students are also required to pass an interview and/or attitude test (if any) subjected to regulation of each university52. B. Quality Assurance (“QA”) in Legal Education For the purpose of enhancing Thailand’s education to live up to international standard and be universally acceptable, the National Education Act B.E. 2542 (as amended in B.E. 2445) started in 2002 introduced its quality assurance system for higher education institutions in Thailand. The scope covers law schools which provide educational services in the undergraduate level, schools of law are now therefore being bound by the standard subjected to the Ministry of Education Notification on the Undergraduate Program Standard Criteria B.E. 2558 (2015) (“2015 Notification”). To make sure that the law programs being offered by universities in Thailand will meet certain requirements on i) Regulatory Standards (curricular management in accordance with the standard criteria stipulated by OHEC), ii) Graduates (including graduate quality in accordance with the Thai qualifications framework for higher education, and graduates’ employment or research output), iii) Students (student admission, student support and development, and results experienced by students), iv) Instructors (including management and development of instructors, instructor quality, and results experienced by instructors), v) Curriculum, Learning and Teaching, and Learner Assessment (including content of courses in the curriculum, establishment of an instructional system for instructors and a process for learning and teaching, learner assessment, and curriculum operational results according to the Thai qualifications framework for higher education), and vi) Learning Resources, the six indicators are in place to be used for checking and monitoring universities’ performance each year as a repeated step of PDCA system (Plan, Do, Check, Act) that will be evaluated by OHEC. 50National Assessment and Educational Test is administered, monitored, and conducted by the National Institute of Educational Testing Service (Public Organization)—NIETS. The test includes O-Net, GAT, and PAT. 51The current admission system in Thailand now work in parallel between i) the National Assessment and Educational Test which accounts students a certain proportion of admission score and ii) the Direct Entrance Examination to be organized by each individual university, together with an interview or attitude test (if any). 52Ariyanuntaka (n 4) 157-158. See also Ngamnet Triamanuruck, Sansanee Phongpala, and Sirikanang Chaiyasuta, ‘Overview of Legal Systems in Asia-Pacific Region: Thailand’ in Digital Repository (eds), OVERVIEW OF LEGAL SYSTEMS IN ASIA-PACIFIC REGION 5 (Scholarship@Cornell Law 2004). 95

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia The score will then be published following the evaluation. Among various rules, what are viewed important and a stumbling block for universities in running law programs are likely the Indicator No. 3.2 on Student Support and Development and No. 4.2 on Instructor Quality. According to Article 10 of the 2015 Notification, the academic program operated by the higher education institutions must have adequate qualified program faculty members, given that i) “10.1.1 the program faculty member53 must hold a master’s degree or an assistant professor title and have produced, in the past five years, at least one academic work which is not a part of graduation requirements and published in accordance with the publication criteria specified for academic title appointment”, and ii) “10.1.2 qualified faculty members responsible for the program54, of at least five in number, must hold the same qualifications and academic works as specified in 10.1.1, and in case the program has more than one study track, each track must have at least three faculty members, who hold direct or related specialization to the track, responsible for the program”. Further, in Article 10.1.3 (Quality of the Lecturer), the provision says “the lecturer can be either a full-time or part-time lecturer who holds at least a master’s degree or an assistant professor title in the field of study or related field. Where the full- time holds merely a bachelor’s degree, they can continue teaching in the program only if they have been teaching in such program before the Undergraduate Program Standard Criteria B.E. 2558 takes effect”. In the case of the part-time lecturer, they are required to have the same qualifications but if “(they) have no master’s degree, they are required to have at least a bachelor’s degree and have at least six years of working experience related to the course. Whatsoever the case will be, the part-time lecturer must not teach more than 50 percent of the total number of hours of a course in which a full-time lecturer is responsible for the management of the course” Whilst in the Ministry of Education Notification on the Graduate Program Standard Criteria B.E. 2558 (2015), the conditions on the qualified program faculty 53According to Article 4 of the 2015 Notification, the Program Faculty Member shall mean a full-time faculty member who holds a degree in the field of study or related field of study and teaches and conducts research in the field of study. 54According to Article 4 of the 2015 Notification, the Faculty Member Responsible for the Program shall mean a program faculty member who is i) responsible for developing and managing curriculum and instruction which include planning, controlling quality, following-up, evaluating and developing, and ii) is involved throughout the implementation of the program. 96

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia members in the Master of Laws program are i) to hold at least a master’s degree and ii) have produced , in the past five years, at least three academic works; one of which is a research which is not a part of graduation requirements and published in accordance with the publication criteria specified for academic title appointment (Articles 10.3.1). And the conditions on the qualified faculty members responsible for the program, of at least three in number, to hold i) a doctoral degree or at least a master’s degree and an associate professor title (emphasis added) and ii) have produced, in the past five years, at least three academic works; one of which is a research which is not a part of graduation requirements and published in accordance with the publication criteria specified for academic title appointment (Articles 10.3.2). Despite of that, Article 10.3.5 (Quality of the Lecturer) also requires lecturer, either full-time or part-time, to i) hold at least a master’s degree in law or in related field, ii) have teaching experience, and iii) have produced, in the past five years at least one academic work which is not a part of graduation requirements and published in accordance with the publication criteria specified for academic title appointment. This is while the 50-percent limit of a part- time lecturer still applies. Moreover, in the Master of Laws program, Article 10.3.3 also requires thesis/independent study major advisor to i) be a program faculty member, ii) hold a doctoral degree or at least a master’s degree with an associate professor title (emphasis added), and iii) have produced , in the past five years, at least three academic works; one of which is a research which is not a part of graduation requirements and published in accordance with the publication criteria specified for academic title appointment. The burden is even tougher when it comes to the qualifications of the thesis examiners which require three committee members comprising of either i) one or two program faculty members having the same qualifications as the major advisor or ii) one or two external experts holding a doctoral degree and have produced at least 10 academic works related to or in line with the topic of the student’s thesis or independent study and published in journals listed in accepted national database55. As the result, law schools are now living in difficulty in managing their programs to meet the requirements, especially to recruit an adequate number of qualified members 55 External experts who do not have the above qualifications and academic works but have knowledge, expertise and experience related to or in line with the topic of the student’s thesis can act as thesis examiners with the approval of the University Council and acknowledgement of the Commission on Higher Educations. 97

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia who have practical skills to work. Despite the unlikelihood of possibility that practical lawyers will switch to work in academics, many of them obtain only a bachelor degree though they have great numbers of years of practical experience. They are hence unqualified to pass on their knowledge. Following the trend of proliferation of international trade and investment of which requires more number of interdisciplinary legal experts in market, it is likely hard for internal management to bridge the gap between practices and theories under these regulations. Also, though the regulations provide some exception clauses (i.e. Article 10.1.2 of the 2015 Notification), given in its last par. that “in case the program is unable to complete the number of faculty members responsible for the program, the University may propose the appropriate number and qualifications of faculty members responsible for the program to OHEC for approval”, this is yet not easy and subjected to consideration and discretion of OHEC on case by case basis. Not to mention that there is very limited number of international journals in law that are qualified and recognized by OHEC according to the publication criteria stated in OHEC’s Regulations on Academic Title Appointment B.E. 255656, nuisance in their program management is then severe. By taking Thai history in the introduction part into consideration, likely, law schools in Thailand are more into teaching rather than producing research. III. PROFESSIONAL ASSOCIATIONS A. Thailand Lawyers’ Council under the Royal Patronage In speaking of Thai legal education, it will be incomplete if this paper ignores mentioning the function of the two Thai professional associations, the Thai Lawyers’ Council and the Thai Bar, in legal training. Following jurisprudential study in law school, Thailand Lawyers’ Council will provide professional training to transform law school graduates to be a lawyer. According to Article 4 of the Lawyers Act B.E. 2528 (1985), lawyer is defined as “a person who has been registered as a lawyer, and a license has been issued to him or her by the Lawyers Council (emphasis added). Therefore, by law, there can be no one being 56This is to note that among the 19 international journals listed in the exhibit to OHEC’s Regulations on Academic Title Appointment B.E. 2556, there are likely only three journals in law, including Scopus and Social Science Research Network, being qualified and recognized by the commission. 98

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia a lawyer or practicing law in Thailand without i) a law degree, ii) having registered with the Lawyers’ Council, and iii) obtaining a license to practice. Unlike the United Kingdom, lawyers in Thailand are not divided into barristers and solicitors, nor are required to pass a bar exam as they would be required in the United States57. In order to be registered and obtain a lawyer’s license, an individual must meet certain educational requirements and that requires i) an LL.B or an associate degree or a certificate in law equivalent to an LL.B. or an associate degree from an educational institution accredited by the Thai Lawyers’ Council, and ii) completion of training in professional ethics and basic principles of advocacy and legal profession58. The training, which is run by the Institute of Law Practice Training of the Lawyer’s Council, is divided into two stages. In the first stage, the candidate will be required to learn the theory of case conduct and professional ethics for not less than 90 hours and will subsequently be required to pass the test at the end of the term. Then in the second stage, the candidate will be required to have an internship in a qualified law firm. After six months (at least) of actual training, the candidate will need to apply their knowledge in the second test before he or she is qualified to a lawyer’s license59. It is also important to note that to be a lawyer, the profession is by law restricted and reserved to only Thais60. According to Thailand’s Foreign Business Act B.E. 2542 (1999), legal service business is the business which Thai national is not ready to compete with foreigners subject to the List No. 361. Foreign citizens are therefore being prohibited to operate legal service unless permission is granted by the Director- General62. By law, the lawyer’s license is valid for two years from the date of issuance and it subjects to renewal 90 days prior to its expiration. To avoid any interruption63, it is optional for Thai lawyers to apply for a lifetime membership64. 57Charunun Sathitsuksomboon, ‘Thailand’s Legal System: Requirements, Practice, and Ethical Conduct’ (Thailand Law Form) <http://thailawforum.com/articles/charununlegal.html> assessed 20 February 2019. 58ibid. See also the Lawyers Act B.E. 2528, art 35. 59Sathitsuksomboon (n 57). 60The Lawyers Act B.E. 2528, art 35. 61Thailand Foreign Business Act, art 4 provides: “Foreigner means (1) natural person not of Thai nationality; (2) juristic person not registered in Thailand…”. 62Foreign Business Act B.E. 2542, art 8. 63The Lawyers Act B.E. 2528, art 44 provides: “The lawyer title can be ceased upon terminated by (1) death; (2) notification of his termination of practice; (3) failure to renew his license…”. 64The Lawyers Act B.E. 2528, art 39. 99

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia B. Thai Bar Association While in Thailand, lawyer’s license is an essential requirement to practice law and be a lawyer, the Thai Bar is on the other hand a prerequisite to become public prosecutor or a judge. As such, the lectures in Thai Bar more focus on decisions of the supreme court and analysis on the analogy and the court’s arguments. This attracts many legal practitioners to enroll for the course to gain more knowledge in law though they may not run for judicial exams in the end. Rather than producing personals to serve judiciary in the Ministry of Justice in the old day65, the operation of the Thai Bar Association nowadays focuses more on promotion of education and knowledge of legal practice for law practitioners66. This aim was stated in the objective of establishment of the Legal Education Institute of the Thai Bar Association that was accorded to the Agreement of the International Bar Association in which Thailand is a member. It was the consensus of the International Bar Association which was held in Hague, Netherlands, in 194867. At present, to be qualified as a candidate to apply to study in Thai Bar, the applicant must be a person who graduates with Bachelor of Laws degree from universities in Thailand or overseas and passes an examination to the standard stipulated by the Legal Study Committee of the Bar according to Article 56 of the Thai Bar Association Regulation B.E. 2507 (1964) (“1964 Regulation”). Subject to the Rule of the Thai Bar Association on Student Registration, Teaching and Learning, Examinations, and Disciplines and Ethics B.E. 2507 (1964), Article 5 states that the curriculum of study is comprised of two semesters and two written exams. In Article 5 par. 2, it states that the first semester begins in June and ends in September and the second semester begins in December and ends in March. The written exam is held at the time in between. Time of teaching in the Thai Bar is between 8.00 to 16.30 of the normal class and from 17.00 to 20.00 of the evening class but class attendance is not a requirement. Students are permitted to study at home68. According to Article 8 of the Rule, in the first semester, students will study criminal and civil and commercial law course. It includes administrative law, labor law, 65See INTRODUCTION. 66Ariyanuntaka (n 4) 149. See also Sathitsuksomboon (n 57). 67Ariyanuntaka (n 4) 149. 68ibid 170. 100

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia criminal law, obligation, torts, juristic act, civil law on property, sales, hire of property, hire-purchase, hire of labor, hire of service, exchange, gift, deposit, loan, suretyship, pledge, mortgage, bill, agency, broker, partnership and company, family, succession, land law, tax law, intellectual property law and international law, of which account 20 questions in the final test. And in the second semester, students will study on criminal and civil procedural law, which includes bankruptcy law, civil procedural law, criminal procedural law, constitution of the court of justice, trial procedure in juvenile and family court, evidence law and litigation and witness examining practices, of which account another 20 questions in the second test69. If students can pass all the tests, they will then be qualified to take an oral test before being entitled to Barrister-at-Law degree70. Later, they will then be qualified to apply for a judicial recruitment, either to be a judge or public prosecutor, of course if they are willing to be. Apparently, the way of learning and testing law students in legal education of Thai Bar can be differentiated from those in universities as its curriculum focuses more on professional training and the supreme court decisions as a secondary authority that are commonly respected by judges in lower courts (emphasis added). According to Article 3 of the 1964 Regulation, membership of the Thai Bar Association are of five different classes; they are ordinary membership, extraordinary membership, associate membership71, auxiliary membership72, and honorary membership73. Whilst all registered lawyers in Thailand, by virtue of the Lawyers Act B.E. 2528, are admitted to extraordinary membership, only students who pass all the requirements that earlier stated will then possibly be admitted to the ordinary member of the Bar. CONCLUSION Said Honorable Judge Vichai, “the appropriate lawyer is compared with social architect or engineer. He or she should have very keen legal knowledge in particular area. Economic, social, and politic matters will be important for all lawyers to 69ibid. 70Sathitsuksomboon (n 57). 71Associate membership is for a second-class lawyer that was first originated by virtue of the Lawyers Act B.E. 2508. After the enforcement of the Lawyers Act B.E. 2528, the second-class lawyer was then abolished. 72Auxiliary membership is for students of the Institute of Legal Education of the Thai Bar Association. 73Honorary membership is given to any distinguished person with extensive knowledge of legal or political science. 101

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia understand the situations and its implications. Lawyers, therefore, will be able to manage to establish justice in the society, which is the step toward elevating quality and integrity of Thai community. Lawyers should be able to protect state interest and sovereignty”74. To have a great lawyer, as a social engineer who shapes and keeps proper structure of local society stated by Pound, it is the matter of nonstop learning and well- rounded knowledge that legal education is a big and significant part of entire effort and contribution of institutions and professional associations in the country. To certain point, the current education system in Thailand is, by point of view of the author, already well designed to prepare law students to the path but the system (i.e. the QA system) is supposed to be more flexible by taking nature of each specific field of study, such as law, into consideration. It is argued by the author that there is no one-size-fit-all concept for education standard that can be identically and equally applied to all fields. Besides, perception of Thais towards local teaching career can be changed with campaigns and social movement to value more this “mentoring” profession. Thailand now needs interdisciplinary legal experts more than ever in the midst of political and economic changes to sustain its “modernity”. The choice is nonetheless in hands of all legal practitioners, including educators, in land. 74Ariyanuntaka (n 4) 175. 102

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia REFERENCES Ariyanuntaka V, ‘Legal Research and Legal Education in Thailand’ in Institute of Developing Economies (eds), Doing Legal Research in Asian Countries China, India, Malaysia, Philippines, Thailand, Vietnam (IDE-JETRO 2003). Assumption University, ‘Undergraduate Bulletin 2018-2019’ <http://www.au.edu/images/pdf/ Bulletin2018-2019_001.pdf> assessed 20 February 2019. Blechschmidt S, ‘Interview with Mr. Shiori Tamura’ (CPG Online Magazine 2016) <http://www.cpg- online.de/wp-content/uploads/2017/02/COM-6-2016-revised-last-version-resized-new.pdf > assessed 20 February 2019. Faculty of Law, ‘Bachelor of Laws Program-Course Description’ (Chulalongkorn University 2015), <http://www.law.chula.ac.th/home/page.aspx?id=59> assessed 20 February 2019). Faculty of Law, ‘Bachelor of Laws Program-Structure’ (Chulalongkorn University 2015) <http://www.law.chula.ac.th/home/page.aspx?id=57> assessed 20 February 2019. Faculty of Law, ‘Program Description’ (Thammasat University 2015) <https://reg.tu.ac.th/th/ Picture/AttFile/c9b0a12f-81e0-4d47-92ba-079e30983576> assessed 21 February 2019. McManaman L, ‘Social Engineering: The Legal Philosophy of Roscoe Pound’ [1958] 33 ST. JOHN’S L. REV. 1. Pongsapan M, ‘Remedies for Breach of Contract in Thai Law’ in Mindy Chen-Wishart, Alexander Loke and Burton Ong (eds), Studies in the Contract Laws of Asia I: Remedies for Breach of Contract (Oxford Express 2016). Prasitmonthon N, ‘A Comparative Legal Study between the Common Law and the Civil Legal Tradition of Thailand’ <https://pdfs.semanticscholar.org/fb0f/615c673d84defe3617761ae104e8053fe1f1.pdf> assessed 20 February 2019. Sathitsuksomboon C, ‘Thailand’s Legal System: Requirements, Practice, and Ethical Conduct’ (Thailand Law Form) <http://thailawforum.com/articles/charununlegal.html> assessed 20 February 2019. Suebkinneon N, ‘Legal Education System in Thailand: Past, Present & Future Needs’ (Dhurakij Pundit University 2004) < http://www.dpu.ac.th/dpurc/assets/uploads/public/ugvk7s61xasogwgso0.pdf > assessed 20 February 2019. Thanitcul S, ‘ASEAN Charter and Legal education in Thailand’ (ASEAN Law Association 2009) <http://www.aseanlawassociation.org/10GAdocs/Thailand1.pdf> assessed 20 February 2019. The Institute of Legal Education, ‘List of Law Schools to be Qualified for Admission to the Institute of Legal Education of Thai Bar Association’ (Thai Bar Association 2018) <http://www.thethaibar.or.th/thaibarweb/files/Data_web/3_%20Kong_Borikan/thabian_naksue ksa/un_thethabar122018.pdf> assessed 20 February 2019. 103

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia The Office of the Higher Education Commission, ‘Vision and Mission’ <http://www.mua.go.th/vision.html> assessed 23 August 2019. Triamanuruck N, Phongpala N, and Chaiyasuta S, ‘Overview of Legal Systems in Asia-Pacific Region: Thailand’ in Digital Repository (eds), Overview of Legal Systems in Asia-Pacific Region 5 (Scholarship@Cornell Law 2004). 104

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia WOMEN RIGHTS: “ROLE OF WOMEN ENTREPRENEURS IN PROMOTING CORPORATE SOCIAL RESPONSIBLY IN CAMBODIA” Hong Sochea ABSTRACT Historically Cambodia women are following tradition and norm in society as a whole which makes it difficult for women to be confident in starting up a business. Empower women in Cambodia to become entrepreneurs will require actions from relevant stakeholders. Women likely show more responsibly in term of contribution to social activities. Consequently, Women are lacking capacity in business knowledge, receiving relevance trainings and accessing capital investments to sustain their business growth. This paper will look at what extent women are able to enjoy their rights in operated business and using a leadership role to promote corporate social responsibility in Cambodia. Based on desk reviews relevant documents, reports, articles, books, journals, law and regulations are available. The paper will examine human rights and CSR principle and looking at the Royal Government of Cambodia mechanisms in order to provide inclusive impact for the role of women Entrepreneurs in fostering Cambodia CSR. Keywords: Corporate Social Responsibility, Gender equality, Women Entrepreneurs, Human rights I. INTRODUCTION According to Cambodia constitution article 45 stated that all form of discrimination against women should be abolished in which the form of exploitation of women labour shall be prohibited. Women and men have equal rights in all fields. Especially, for those women who married and have family.1 In this case, Cambodian women has endowed in supreme law of the kingdom. Therefore, Cambodia labour law 1997 article 12 provides that the regulation of protecting women and child, no employer shall consider on account of race, sex, colour, creed, religious, political opinion, birth, social origin, memberships of workers union or the exercise of 1 Cambodia Const article XXXXV § 3 105

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia union activities.2 In addition to Cambodia domestic law, women rights has also promote in United Nation Convention on the elimination of all form of discrimination against women (CEDAW) which gives in article 11 1(a) the right to work as an inalienable right of all human beings; 11 1(b) the rights to have the same employment opportunities, including the application of the same criterial for selection in matter of employments; 11 1(c) the right to have free choice of profession and employment, the right to have promotion, job security and all benefit and condition of services and the right to received vocational training, including apprenticeship, advanced vocational training and recurrent training.3 Even focus on Sustainable Development Goals (SDG) and Cambodia Sustainable Goals (CSDG) goal number 5 to achieve gender equality and empower all women and girls; adapts and strengthens sound policies and enforceable legislation for the promoting gender equality.4 Based on Asian Development bank (ADB) report stated that there are around 65% women run business, but smaller size than those business run by men. Women’s businesses are less success than business that run by men. Their businesses are more concentrate on service, wholesale, trade and retail. However, women have greater access to financial service which 80% of micro finance institutes are women clients. Some obstacle for business growth that run by women due to lacking access to infrastructure (road and electricity), culture barrier (discrimination and disvaluing of women entrepreneurs), and unable to access to financial support (long-term financial).5 Similarly, as women operate two-third of nation micro-business with no business knowledge support, no confidence in term of making decision. As the result Cambodian women participate in the four sectors which are hospitality, retail, accommodation and handicraft.6 Young women in Cambodia represents 33% the total youth population which most of them age 15 to 30 of age (Youth Resource Development Program, 2012). Therefore, Women consider as vulnerable people which means they shall have tremendous focus protection on their rights. The rights that beyond traditional practice that empower them to be substantial for themselves. Tradition norm in society environment limited women’s ability and opportunity enter to business sector that dominated by male business association. The place where informal information-shared for business expansion and opportunity growth (Attitudes Gender Relation and Attitudes Cambodia Gender Assessment, 2014). 2 January 11, 2019, Cambodia labour law 1997, article 12, p 6 3 January 12, 2019, Convention on the Elimination of all form of discrimination against women (CEDAW) 4 Retrieved 25 January, 2018, Sustainable Development, https://sustainabledevelopment.un.org/sdg5 5 ADB Country Partnersip Strategy Plan: Cambodia, 2014-2018. 6 https://www.khmertimeskh.com/88356/businesswomen-convene-find-solutions-opportunities/ 106

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia It is very importance for all actors to take concrete step for women to ensure their participation in decision making in both public and private sectors. It is time for Cambodian women to rise up as leader.7 The involvement of women in decision making in business which they become entrepreneurs is vital for Cambodia society. Women can play a role in corporate social responsibility (CSR). CSR is involved the commitment of the company in the responsible manner to contribute to society as producers, buyers, employers.8 There are still gaps and concerns for promoting role of women entrepreneurs in promoting CSR in Cambodia. Therefore, many factors that could work on, but in this research the author will focus only two main factors that have not mention in previous study. The first one is that if women has succeed in the role of participating in business and using their role to promoting CSR in Cambodia. II. HISTORICAL OBSTACLE FOR CAMBODIAN WOMEN Women in Cambodia consider as heavenly goddesses which on the wall of Angkor Wat Temple. They were called Apsara, having beautiful smile and distant gaze oblige as paragon of Cambodia women; represent the symbol of purify and smooth of elegance of virtuous female. Somehow, in Khmer folk tale literature has played very critical role for the image and personality of Khmer women; thus, the combining teaching from the religious practice through Buddha’s dharma. The folk tale that most influence is the story of Tom and Teav (Parents take controlling over every decision of their children in the family).9 Furthermore, the diversify aspects across the historical of women in Cambodia stay under an old proverb “Women are no more than white cloth; while, men are gem. A white cloth is muddled which it can never be washed to it used to be. In contrast, a gem can be easy cleaned to shine and brightness as always”. The reflection for women to practice is that if Khmer women make a wrongful doing, they have never be the same status as before, but for men are completely different which they can do any activities they want. So, they’re still a man. The practice of this value lead to discrimination between men and women in Cambodia society. Women should be treated equally as men due they have equal right as men in the society which is not about just in Cambodia society. 7 Time for Cambodian women to take the lead, Opinion, Phnom Penh Post January 12, 2019 https://www.phnompenhpost.com/opinion/time-cambodian-women-take-lead 8 Retrieved 12, January 2019: https://www.researchgate.net/publication/255700427_Corporate_Social_Responsibility_A_Way_Towards_Wom en_Empowerment M. Walsh, PROJECT ON WOMEN’S RIGHTS IN CAMBODIA: LICADHO – UQAM PARTNERSHIP, REPORT ON THE STATUS OF CAMBODIAN WOMEN Domestic Violence, Sexual Assaults and Trafficking for Sexual Exploitation. (2007) 9–10. 107

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Therefore, in this case focus on Cambodia culture and norms. Human rights has applied for all because men and women are human. The right that is universality, inherence, inalienable and with dignity for member of the family.10 Women should have equal opportunity in term of received the same education, joining employment and participating in income-generation; particularly in doing economic empowerment. A. Culture and Norms Nevertheless, the gender stereotype has embedded in Cambodia culture and norm which it is the barrier in family, but also in schools, communities, workplace and media remains in Cambodia society. The Chbap Srey, a Cambodia’s outline code of conduct for women to practice which restricts women to exercise their freedom of choice and making their own decision.11 Khmer women were trained to be responsible in their household role in Cambodia society. The role is to take care of the family, respecting husband. Women requires to speak soft and behaviour in a proper manner at any circumstance. “Never gossip anything to your parents about your husband or this will cause the village to erupt.” “Never turn your back on your husband when he sleeps and never touch his head without first bowing in honour.” “Have patience, prove your patience, and never respond to his excessive anger.”12 The Chbap Srey stated. The showcase is one in many gender norms in Cambodia which pressure women to have voice for themselves. Women in societal Cambodia has struggled through the code of conduct for women. The code has taught to women young generation for years. Hence, they have never enjoyed their rights in dreaming doing to activities that they’re passionate about. For instance, Women don’t need to go to school due to they don’t need any knowledge from school. As when they are in the age of married; the legal age for women to married is when women turn to 18 years old of age. They’ll stay home to look after children. In fact, if they go to school, they should understand more about the issue of culture and norm in the society. Somehow, they will fight for their right through-out education. By using the knowledge granted from school to justify the stereotype. Especially, parent in the household family worried about the debate on their practice tradition that pass from generation to generation and questions. For this reason, women are being warn that knowledge isn’t import as most of the time household shore falling into women responsible. Women don’t even allow to imagine about their freedom and voice. If they will keep hearing the same thing from their family and the 10 International Covenant on Civil and Political right, preamble, p. 13 11 A/HRC/WG.6/32/KHM/2 12 M. Walsh, PROJECT ON WOMEN’S RIGHTS IN CAMBODIA: LICADHO – UQAM PARTNERSHIP, REPORT ON THE STATUS OF CAMBODIAN WOMEN Domestic Violence, Sexual Assaults and Trafficking for Sexual Exploitation. (2007) 9–10. 108

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia community. How women can gain new knowledge if they haven’t taught beside Chbap Srey and receive education by allowing women attends school at least finishing high school. B. Society-valued in Cambodia The society that give value to men from top-to bottom in the country. Even-though, in the government, private sectors and somehow NGOs as well. Most of the leadership duties in the top management in the operation which managed by men across all sectors. However, Khmer women are having the progress of gain more freedom and having their right by increasing employment opportunity through economic development. Women are expected to follow social norm while men enjoy their gender privilege. Women still stay under gender obstacle which underpin their capacity and potential for contributing to society as the same citizen. Gender bar is the value of women equally treated. For instance, women should gain fully participate in economic, social and culture benefit. The society that still practice old stereotype which the norm and tradition that confine women as weaker to do the job that men can. Women aren’t encouraging to use their potential ability beside look after household and childcare duties because of men lead every decision in family, community and society. Women migrate to urban area have increased tremendously in recently day in the sake of searching for employment to support their family as the expectation of tradition and norm require women rethink double for family supported-income. Most of them are living the place that cheap with unhealthy and unsafe condition. The money earn has divided into two portion of it; one-part sends to their parents and other spending to take care their health and well-being due to the living condition is unclean in their work environment. The study show that unsafe condition makes women vulnerable to violence and sexual exploitation. Thus, they need supporting from their family and friends. In contrast to the seeking for job in the city. Women is face to another lacking for necessary resource in the sense of building entrepreneurship which require women to have confidence in themselves and having strong decision-making skill. The society of Cambodia taught them to be shy and less self-confidence. The access to information as well as available resource is so crucial for entrepreneurs. Some information requires strong following up like law, regulation of Cambodia government. The less self-balance which lead to bury themselves in the situation that they have to face and mind-set challenges from tradition.13 The majority women perform mostly in domestic job, but unpaid work in household and community. The invisible women and girl to prevent to have high level of education, so they are able to get more pay. Thereby, life option and economic autonomous is limit for them. Fortunately, lower education 13Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014, Ministry of Women Affair, p 4 109

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia women can earn income through work at garment and footwear industries across the country. The industry employment around 700,000 workers during the last decades. As progressively sees that women be able to participate in economic employment even-though the employment is in labour driven sector.14 Having greatest percentage (76% to 80% between 2008 and 2012 for women age from 15 to 65) of women participate in economic empowerment opportunity, but gender stereotype closes their chance to expand in economic activities. As comparing to 70% of female worker to 56% of men. Most of women are self-employed run small family business, street and market vendors. The job provides unskilled work like employed at the garment and footwear factories and domestic job in urban area. Those works are consider appropriated work for them due to the case of tradition stereotype.15 To addressing the economic limitation for women due to stereotype and norm, enhancing opportunity for education train them about women empowerment. Whereas, Cambodia government have achieve higher number of registration for primary and elementary, but the drop-out number remain high among female students as the society value on boy over girl education that is another barriers to women to peruse education. The will of the parents is that for daughter to look after their parent when they’re elder, taking care sibling, and doing housework is enough for women to fulfil their duties in the society. As the result, women get married earlier than men; even start school later than men and withdraw from earlier men. According to the study of Cambodia Demographic and Health Survey (CDHS), 2010, “one- quarter of Cambodia women aged 25-45 are married by age 18; the average age marriage is 20.2 for women compared 22.6 for men”. (Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014). On the other hand, ASEAN economic integration expects Cambodia to gain more employment through free movement of labour, so there are concerning about low educational attainment as well as lacking of skill of technical to compete within the region of ASEAN countries such as Singapore, Malaysia, Indonesia, Thailand, Brunel, Vietnam, The Philippine, Loa and Myanmar. Norm and tradition pressure Cambodia women to support family, so they will search for alternative income from another ASEAN country which result for them give up school because of the integration, rather than proving women and girl opportunity to receive higher education. The percentage is lower of women in leadership and senior level because of the norm and tradition push women away from holding a leader position. Still in the perspective of 14 http://sea-globe.com/cambodia-economy-under-fire-from-possible-eba-loss/ 15 Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014, Ministry of Women Affair, p 3- 4 110

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia discrimination for women ability can produce the work as equally as men. Women should able to have capacity of knowledge the same as men unless they treat equal in the society. Especially, women participate from low to higher education level. The increased percentage of women and girls in education attainment which contribute to women economic empowerment and the inclusive growth of economic.16 Another word, women should be train in soft and hard skill, so they be able to gain strong confident in leading role dual places public and private sectors. Life experience play very significant for women in the condition of involve in business and entrepreneurship. Based on United Nation Women found that “Women’s economic empowerment is central to realizing women’s rights and gender equality. Women’s economic empowerment includes women’s ability to participate equally in existing markets…increased voice, agency and meaningful participation in economic decision-making at all levels from the household to international institutions”. Otherwise, women’s economic equality is positive for business. Both companies that run by women as entrepreneur and women employed by other companies will benefit from leadership opportunity for women.17 III. Overviews of Cambodia Legal Instrument Yet, Cambodia probably the most war-torn country in South-Asia. If talking about legal system, Cambodia is mostly likely similar with the countries in the region of Asian. The system of law in the country has deep down evolve from customary law to modern law. The classification of the law separates into two main period of time from juris scholars. The Khmer customary law normally refer to unwritten law which was from ancient Funan to Angkor Wat time. The consensus was the form legal usage during that time. The codification of Cambodia of the modern law is from 1336 to the present.18 Then, Cambodia felt under French protectorate in 1863. Legal system was influence by French system spread out the whole country whilst the law attached in education system. But also Cambodia lawyers, judges and persecutors had practiced until 1975. 19 The tragedy during Khmer Rouge which the entire of legal system of law has been eliminated but also most of legal scholars have executed. Cambodia received a short invasion from Vietnam because of teachers, university professors, legal school were kill during Pol Pot regime. There was shortage of legal practitioners. The emerging of legal system again while the system influence by Vietnam system during that time. There were major Cambodia legal 16 http://www.unwomen.org/en/what-we-do/economic-empowerment/facts-and-figures 17 http://www.unwomen.org/en/what-we-do/economic-empowerment/facts-and-figures 18 Introduction to Cambodian Law; Hor Peng, Kong Phallack, Jorg Menzel, Chapter 1, P7-10, 2012 19 Introduction to Cambodian Law; Hor Peng, Kong Phallack, Jorg Menzel, Chapter 1, P7-10, 2012 111

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia instrument and regulation promulgated included contract law. The enacted some of country important law during the United Nation Transitional Authority of Cambodia (UNTAC) such as criminal, juridical and press law. Moreover, the increasing of number of law started draft with relevant stakeholders and actors for consultation within the assistant of development partners (DP) like Japanese government and other. The significant of the drafting law was the new Cambodia constitution which the supreme law of the country. The new constitution has integrated and recognize international rights law in the article which is specific in chapter III of the constitution. Through many difference period of regime which Cambodia legal instrument developed from an unwritten law to the law that fully enacted with international law system based on United Nation covenant and charter. Cambodia legal system has driven by the hierarchy of source law as following: Cambodia Constitution: The constitution is the top law of the country. All the law and decisions made by state institution must be restrict in conformity within the Constitution.20 Royal Krom/Law (Chbap): The law that has passed by National Assembly and Senate; and promulgated by the King or acting Head of State.21 Royal-decree: A Royal decree is an executive regulation which proposed by the office of the council ministers and signed by King or acting Head of State.22 Sub-decree: A Sub-decree is an executive regulation which proposed by relevant ministries, and adopted by the office of the council minsters; signed by the Prime Minster.23 Proclamation (Prakas): A proclamation is an executive regulation propose at mistrial level and prepared by relevant ministries which signed by the relevant ministries.24 Decision: A decision is an executive regulation make by Prime Minster, and relevant ministries. A decision can be found in Cambodia constitution Art 150.25 Therefore, the word “decision” is hard to define in law. The only final and binding decision is from constitutional council. As it has the supremacy of law. 20 Constitution, Art 150-new (1993as amended in 1999) 21 Constitution, Art 28-new (1993 as amended in 1994 and 1999) 22 Constitution, Art 28-new (1993 as amended in 1994 and 1999) 23 Law on the Organization and Functioning of the Council of Ministers, Art 13 (1994) 24 Law on the Organization and Functioning of the Council of Ministers, Art 28 and Art 29 (1994) 25 Cambodia Constitution, Art 150-new I 1993 as amended in 1999) 112

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Bylaw (Deika): A bylaw is legal rule that adopted from Council at the sub-national. The context refer to capital, municipal, provincial, district, Khan, commune, Sangkat council which have legislative power to issue by bylaw.26 International Law: According to the decision made by Constitutional council27 that international law is considered a source of Cambodian law. All international treaties can be consider as the source of Cambodia law after a vote of approval from the national assembly and Senate; signature and ratify from the king.28 Circular: A circular is use to clarify the work and affair of the ministries or the point of law and giving instruction. A circular normally signed by the Prime Minister or relevant ministers.29 Crucially that Cambodia recognize most of core human right treaties. Event stated clearly in its Constitution text as one of the source of the Cambodia law. Constitutional council have also reminded judge to use international law include in the decision making process. Therefore, some scholars argue that Cambodia adopted muralist system; in contract, other scholar stand that Cambodia is a dualist system. In fact, Cambodia adopted both of the system dualist and muralist based on Cambodia constitution and the decision constitution council. The source of Cambodia legal system is driven very vital for Cambodia legal instrument to implement legal aspect in the role of law in the country. After the law have passed and ratify by king; those law official published in the book of royal gazette for the dissemination to the whole country as part of information distribution to the citizen for about the law and other government affairs. The important is that law adopted to prevent the social issue, social injustice and the interference from other states to sovereignty state. However, there are still lacking of law due to law is passed by national assembly and Senate can’t over all matter occur in the country; as the development change rapidly through global movement. For instance, women economic empowerment which is the entrepreneurship of the women have leave out to mention in specific intervention in clause of the law adopted. Even better if consider to focus on women entrepreneur as well as social corporate responsibility (CSR). Cambodia in the currently circumstance should put effort to promote women entrepreneur in law implementation of the government. In the same time, in the law making process should consider women as one of the priority as agenda in 26 The law on The Administration and Management of Commune/Sangkat, Art 48 (2001), and law on Administrative Management of the Capital, Provinces, Municipalities, District and Khan, Art 32 and Art 53-Art 61 (2008) 27 The Constitution, CASE No 131/003/2007 of June 26, 2007, Decision No 092,003/2007/CC.D of July 10, 2007 28 Constitution, art 31 (1993) 29 Law on the Organization and Functioning of the Council of Ministers, Art 13 (1994) 113

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia discussion consultation. Similarly, CSR should be integrated into of Cambodia law for preventing the violation for human right from company or enterprise that cooperate in territory of Cambodia. Huma right violation in business become prior concerning from international community which especial in United Nation context. The UN has introduced the Guiding Principle (GP) on the three aspect pillars; 1) the duty for state to protect again human right abuse by business enterprise in their territory or jurisdiction; 2) all businesses must respect to human rights through their business operation activities; 3) government must provide access to local remedies to the issue of human right violation. A. Cambodian Government The Royal Government of Cambodia has committed to promote and protect human right as it has ratified which at least eight of core human right treaties. Women right is a primarily focus for the Royal Government of Cambodia as it laid out on Cambodia instruments, policies, strategies and plans. The focus on women right which RGC recognizes about the crucial of women empowerment in social and economic. In this case, RGC should consider a reform of legal gender equality. This role very importance duty of government to fulfil the obligation. When there is no legal gender difference that prevelts to only men are able to govern every activities and decision making. For instance, men can own mortgage, but women can’t. As some of studied show, the equal job or starting business will not exit; if legal restriction constrain on women ability which make it difficult to participate in economic.30 Six countries got above average score which is 100 percentage; meaning women on equal within across all eight indicators. France, Belgium, Denmark, Sweden, Luxemburg and Latvia are countries received above score from all indicators.31 Cambodia has constitution as the top law of country which in article 35 laid out that “Khmer citizen of both sex have the right to participate actively in the political, economic, social and cultural life of the nation. All requests from citizens shall be given full consideration and resolution by the State’s organization”.32 Therefore, in article 45 also provided “All forms of discrimination against women shall be abolished. The exploitation of women’s labour shall be prohibited. Men and women have equal right in all fields, especially with respect to those of marriage and family”.33 In both article provide specifically on women to enjoy their right in all status as a citizen of Cambodia without discrimination. Most importantly, women have their right 30 Women, Business and the law 2019-A Decade of reform-World Bank Group, p? 31 Women, Business and the law 2019-A Decade of reform-World Bank Group, ? 32 Constitution, art 35 (1993) 33 Constitution, art 45 (1993) 114

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia in participate in economic activities. The Royal government of Cambodia use Rectangular strategy phase III and phase IV as its backbone policy to improve women situation and promote gender equality. RGC had already outline its commitment in previous Millennium Development Goals (MDG) on women which particular in third goal focus on education and economic empowerment. The MDG had graduated and United National have introduced Sustainable Development Goal (SDG), in the SDG goal 5 is about gender equality. Cambodia committed to this goal as well.34 National Strategic Development Plan (NSDP) 2014-2018 demonstrated that gender is a cross-cutting problem which need to address in policy and programme related to economy and legal protection. However, the new draft of NSDP 2019-2023 is under consultation as well as Cambodia sustainable development goal 2016-2030 (CSDG). The CSDG will mainstream into NSDP 2019-2013. Another key framework from ministry of Women Affair (MoWA) is Neary Rattanak IV which is the national plan to promote gender equality and women empowerment. The MoWA is leading ministry that work close all line ministries, collaboration with international organization and local NGOs to mainstream gender work policy and programme. The RGC has established Cambodia National Council of Women (CNCW), this CNCW support ministry of Women Affair to promote the equality of gender throughout the nation of Cambodia.35 B. Legal Implementation Royal Government of Cambodia claim for implementing significant legal framework to fulfil its obligation to the convention. As such of implementation have mentioned in the law, policy and strategy of the RGC. In the Rectangular Strategy phase III; for growth, employment, equity and efficiency have stressed the important of gender equity as key component for nation development, capacity building, and human resource development. Therefore, rectangular strategy phase highlighted the need to further improve gender status for women which are backbone of Cambodia society and economy.36 Cambodia constitution recognized international convention which include CEDAW, and the substance of the convention exits in the law of criminal code 2005 in the chapter 5-artcle 265 t0 273 which punish for those who act of discrimination for both direct and indirect.37 Similarly, RGG have adopted the first nation gender policy in order to provide to sustainable policy framework that align to Sustainable Development Goal (SDG). Based on CEDAW definition of gender discrimination in which providing 34 Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014, Ministry of Women Affair, p1 35 Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014, Ministry of Women Affair, p1 36 CEDAW/C/KHM/6, p 7 37 CEDAW/C/KHM/6, p 7 115

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia differential treatment to individual on the ground of their sex. The system involve on structure of discrimination again women or men for the contribution to income, having access to economic resource as well as participation in decision-making (National Gender Policy 2018).38 The meeting with sub-national which conducted by CNCW to dissemination and monitor of the implementation on convention; information sharing related to domestic law, legal text, recommendation from the government (total number reach out 35,368 participants which female 25.116). The taking into account of recommendation of Queen mother and RGC on CEDAW with working group by line ministries, provincial department, district, and commune level in the form of training, workshop, newsletter and publication document in website. The strengthening measure of CEDAW among judges, persecutors, and lawyers; dissemination to government official and judicial official throughout curriculum of education system about CEDAW. The curricular is a tool to education all civil servants to have critical knowledge about CEDAW in domestic law context. Ministry of Justice (MJ) have integrated what ministry called a Gender Mainstream Action Plan (GMAP) in its strategic plan 2014-2018. Since the start of dissemination on workshop and seminar on CEDAW during two-year period 2014-2016. The training is about gender and women right related to 3650 participants out of 1204 is female. The participants to the workshop who are lawyers and prosecutors, court clerk, court judge, law enforcement ─MJ official across Cambodia.39 Ministry of Civil Service guideline have now set up quota for hire from 20% to 50% of female in public institution. Similarly, Ministry of Interior (MoI) encouraged to increase female as village leader which appointed as governor by government in the whole country.40 The Bar Association of Kingdom of Cambodia have number of women lawyer increase from 133 in 2012 to 206 in 2017. However, women have equal right to seek legal defence. The constitution of Cambodia 39 provided that there are provision for o legal assistance to the poor people who can’t afford to pay service fee of lawyer. In 2019, the government have issued a list of volunteer lawyer into the public with name and their contact number, so people seek lawyer service to have convenience access as their available publicly on social media. The availability of female lawyer to represent female defendant, accused and victim which is vital to society of Cambodia. IV. PRINCIPLE OF CORPORATE SOCIAL RESPONSIBILITY (CSR) 38 CEDAW/C/KHM/6, p 7 39 CEDAW/C/KHM/6, p 7 40 Attitudes Gender Relation and Attitudes Cambodia Gender Assessment; 2014, Ministry of Women Affair, p 2 116

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia As the rising of contemporary business activities become the talk of concerning issue of business or corporate operation impact to environment, society and human right violation. Thus, social corporate responsibility (CSR) has developed more in recent time because of pressure on MNCs arising out of their operation in developing countries and impact of their operation on human right, labours issues and community relations.41 Throughout the evolution of modern concept of CSR can be traced in corporate governance in the United, but some other of the world particularly in European Union has pointed the landmark of vital practice of CSR. Therefore, the discussion point start of emergence in the U.S.42 Some scholar argue that the significant impact of the U.S business role to economy is a place for profitable business for investor including industrial sector. The business is create for profitable as long as offer and improve standard of living by the production and services.43 CSR can be a tool for addressing social impact of business stakeholders.44 Business stakeholder use CSR in the business operation which gain the confident from both investor and customers as recognize good status of practice. In Asia, the concept has attached in the written of classical theological context in Hindu, Confucius and Buddhist scripture; the common practice of CSR with the form of philanthropy, environmental concern, and conceptualize marketing to maximize profit of the business. Olumemi Amao point out that CSR is encompasses the economy, legal and discretionary (Philanthropic) expectations that society has organization at a given point in time.45. Those who support philanthropy emphasis the charitable component of CSR, while those who uphold human rights see CSR as mainly involving labour and human rights issues.46 In 1998 World Business Council Sustainable Development (WBCSD) gave definition that business should be ethically practice for the sake of contribution to sustainable economic development as the same time improving the quality of health condition environment for workforce, family, and local community. Then, in 2012 (WBCSD) mentioned “In 2002 (WBCSD) change definition, \" The commitment of business to contribute to sustainable economic development working with employees, their families, the local community and society at large to improve their quality of life”. In contrast from WBCSD De Schutte pointed out some of the argument for business approach practice: 1) business establish to serve internal work of company which focus socially responsible conduct 41 Corporate Social Responsibility, Human Right and Legal, Multinational copration in Developing Countries. P. 66, Olumemi Amao 42 Corporate Social Responsibility and Relation to Law- p 54 43 Coporate Social Responsibility and Relation to Law- p 50 44 Corperate Social Resposibility and Human Rights in Asia, Robert J. Hanlon, 2014 45 Corporate Social Responsibility, Human Right and Legal, Multinational copration in Developing Countries. P. 68, Olumemi Amao 46 Corporate Social Responsibility, Human Right and Legal, Multinational copration in Developing Countries. P. 68, Olumemi Amao 117

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia contribution to improving the workforce in term of loyalty commitment and productivity, 2) environmentally responsible conduct ensures efficient use of resources, 3) CSR encourages voluntary dialogue with a variety of stakeholders and consequently build trust, increasing companies \" license to operate\" and ensures community support, 4) market will increasingly reward social responsible corporate practice, 5) consumers will buy produces of socially responsible companies. 6) Investor may be more disposed to invest in such companies, 7) public authorities choose to award public contracts forward responsible companies. Likewise, Elkington (2004) agree with some scholar that CSR is to be thought as business model which need to incorporate in economic, environment and social consideration. Elkington gived its name of “triple bottom line” mainstream and the approach as innovative concept due to the lacking of environment discourse in business operation in recently area.47 First of Elkington argument is that industry should adopt conceptual market as vulnerable association which could fall if the social and environmental is weaken (deteriorate). TBL business model as contribute to sustain market throughout what he calls an innovative thinking which move beyond profit- maximization principle and social and environmental risk. Second, the rise of human value which is force private sector to consider the negative impact in where they operate. As corporate scandal spread out to outside which allow activist and costumer demand for accountable. Third, the global shift in the demand for transparency will for industry to take an account for their action. Using social media for transactional movement to hold corporate accountable and elaborate their works. Fourth, civil society organization is more informed on life-cycle of technology with consumers activist demand that TBL is firm influence. Forcing all the business to consider their impact from entire supply chain. Fifth, TBL allow room to engage with controversial NGO that consider to develop successful engagement of strategies. Sixth, TBL thinking could rectify the decision of “time is money” ideology that force industry to have rush decision that risk to society. Finally, the role of corporate governance can break TBL thinking. TBL need board of director to execute and take action as well executive director without them, TBL will fail. Elkong’s TBL approach has brought into CRS mainstream discourse and the concept use by scholar for decades.48 However, Windsor (2006) saw CRS as three classifications approach. First, Windsor introduce ethical responsibility theory which corporate have duties that are grounded by self- control and humanity. Industry choose not to act on certain negative impact. Beside that business 47 Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p7 (30-5-2019) 48 Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p8 (13-6-2019) 118

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia should behave on altruism sense through philanthropy practice. Second, Windsor suggests that could employ economic approach in CSR. Embracing CSR into public policy and placing profit- maximizing in the centre of social responsibility. Third, Windsor brought about corporate citizenship as a competing view of CSR which it wants to abandon the language of CSR by replace artificial citizen that bounded by duties and rights. 49 For Carrol (1979), business should adopt Social Performance Model that seek company responsibility performance, provide clear goal for social responsibility behaviour and create a response philosophy in order to meet the objective.50 Carrol saw the problem that non-mutual exclusive component between business sector and society. He explained that economic responsibility must be firm; otherwise there is no business in the first place. Business operate for profit and engage with the activities that community demand. Second, business should be responsible in the legal manner to fulfil the social contract with the society. The industry of business should adhere to the legal and regulation in their operation of jurisdiction with the balance from profit making. Third, he saw ethical responsible which is non-codify requirement on the way business run in the society. When it comes to define the word ethical itself is very hard. The dialogue will determine business to raising issue and giving society to change expectation. Lastly, he see the careful responsibility which business must be use the best measure while approaching situation that no clear legality and ethical.51 Therefore, Wood’s (1991a, 1991b) mentioned about corporate social performance (CSP) which incorporate with Carrol approach as well. The purpose of CSP is to reduce corporate harm; while encourage industry to contribute to well-being for community. For Wood, business accepted responsibility which free themselves for disapproving stakeholders. Wood explains her ground break CSP model that, “Principle of social responsibility…at the institution, organizational, and individual levels; process of social responsiveness are show to be environmental assessment, stakeholder management and issue management; an outcome of CSP are posed as social impact, program and policies” Wood, 1991a, 1991b; 69).52 Another theoretical approach to CSR is what they call ‘Public Responsible Framework’ which industry operate an interpenetrating, organic and shared environment in society. The public responsibility demand industry position within community public policy conversation. 49 Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p8 (13-6-2019) 50 Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p8 (13-6-2019) 51 Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p9 (13-6-2019) 52 Corporate Social Responsibility and Human Right in Asia, Robert J. Hanlon, 2014, p9 (14-6-2019) 119

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia V. CSR ACTION AREAS WITHIN THE PUBLIC POLICY OF THE GOVERNMENT Government have strong responsibility in action for protecting citizen from corporate harm. In other word, government must employ CSR action to its public policy. The action can form with four components. First, government intervention in awareness-raising that provide award scheme, information platforms, campaigns, training and capacity building measures, disclosure of payments to public institutions, naming poor performers, labelling and toolkits. These tools for government to disseminating Corporate Responsibility (CR) policy for business to adopt. Second, partnership is an instrument that lie on the heart CR public policy. The instrument combines an expertise, resource and competencies in public sector for business and social actor to address the concern within CR agenda. For example, multi-stakeholder’s involvement, public-private partners, collective action efforts and roundtable dialogue. Third, soft law intervention to promote CR awareness. The Soft law is non regulatory intervention to promote universal principle such as UN global compact, corporate government codes, codes of conduct, implementation of international principle, and guideline for CSR reporting, tax exception for philanthropic and expert credit boards. Finally, mandating instrument is to set minimum standard for business operation that relevant to CR policy and agenda on labour law, anti-corruption, and environmental protection. Company laws, regulations for pension funds, stock exchange regulations, law on CSR reporting, penalties for non-compliance are enforce corporate responsibility activities. CR policy is a tool for measuring company obligation and report CR associated business activities or initiative private partnership.53 Significantly, the five cross-cutting approaches help to address human right, health, poverty, and environmental issue. However, in the intervention of government has the top five policy action as in recent year has increase economic downturn affecting to society at large to demand transparency and accountability from business. First, corporate governance structure is the foundation in ethical guideline to combat bribery, and establishing a strong relationship with relevant stakeholders. When having pressure from corporate government which require the rising number of social responsibility of investors to have ethical guideline in its structure. For example, in the case of Europe is that market share has in increase to 17.6 percent of all assets through social responsible investments (SRIs). The role of government is to introduce ethical criteria linkage to governance pension fund, public loan guarantee or public procurement. This can promote through principle 53 The Role of Governments in Promoting Corporate Responsibility and Private Sector Engagement in Development, United Nation Global Compact and Bertelsmann Stiftung, 2010, p17 120

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia for responsible investors (PRIs). The developing of code of conduct can also introduce in associate within the business. Second, reporting and disclosure is about the honesty in internal and external communication of the company. The communication within the company’s stakeholders on company value, activities, challenges and success to enhance industry reputation. Therefore, there is concern on human right violation, water scarcity, and corruption which lead to increasing of CR policy. The policy requires to report which include legal requirement for mandating report and disclosure as well as creating voluntary report. Third, community involvement and development is growing worried about development issue and the delivering of economic good for both risk and opportunity. The company can contribute to community and addressing issue as a whole. In particularly in the countries where is lacking of mechanism, scare resource and political will be in the public. Forth, responsible management and production is a core of business operation. If there is lacking of attention in this area. Human right and environmental problem is high. At the same time, opportunity is high if the company pay more attention on human right and do no harm on to environment. Lastly, responsible consumption is the pressure that engage business to adopt social responsibility business practice as the growing tendency of consumers. The consumers looks not only price, quality and service, but increasingly about environmental and social “footprint” as well.54 V. CONCLUSION AND RECOMMENDATION A. Conclusion Cambodia women still faces norm and tradition from the past until nowadays that lead to obstacle for them to be confident in becoming as entrepreneur. As the society provide more value to men to decide economic activities; both gender obstacle and old stereotype roots in Cambodia society. Moreover, women are less confident and lacking of technical skill. Even-though government has law and regulation in place but the lacking implementation still far behind to promote the role of women entrepreneur as none of mechanism specifically forward women entrepreneurs. Women be able to contribute more good activities for society in the form of CSR as they are more empathy which they use to take of their children. In doing business, women can apply the same method to take of employee, society and environment in the operation of the business. 54 The Role of Governments in Promoting Corporate Responsibility and Private Sector Engagement in Development, United Nation Global , Compact and Bertelsmann Stiftung, 2010, p19-21 121

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia B. Recommendation • Legal gender different are prevalent. The law restriction constraint woman’s ability in decision making which they may not decide to involve in the economy if the law makes more difficult for them. For example, the process of register business and dealing with tax department far more complex. • CSR framework doesn’t adopt by the royal government of Cambodia Yet. CSR framework is tool for pushing business to not just profit oriented, but forming transparency. • There is no proper mechanism or specific project that focus on women entrepreneurs from government besides the promising to increase budget for capacity building and soft-skill training. • Lacking of school curriculum in entrepreneur and social corporate responsibility (CRS) in high school. • Award those women entrepreneur who apply CSR policy in their management operation • Public forum on women entrepreneurs and CSR raising awareness. 122

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