Sacrava's Political Cartoon: Hye-Hor 5 Bora

Cartoon by Sacrava (on the web at http://sacrava.blogspot.com)

A Letter from Cambodian Ambassador for UK

July 3, 2012

Below is a letter written by Cambidian Ambassador for United Kingdom regarding an article written by Dr. Gaffar Peang-Meth published by the Asian Human Rights Commission (AHRC). It is one of many articles that he has written in recent year. We publish it with a note from AHRC.

A note from the AHRC

It is the right of every person to express their views on matters that they believe to be important. The AHRC publishes opinion editorials of numerous journalists, diplomats and human rights defenders from countries across Asia so as to promote free discussion. We are committed to encouraging the free exchange of ideas and opinions in the belief that democracy and human rights will survive only if there is freedom of expression, including freedom of media organizations. The AHRC maintains that topics should be matters of public interest, and views should be expressed in a polite manner.

The views expressed by Dr. Gaffar Peang-Meth in his article entitled, ‘Respect Ideals and Concepts, not Arbitrary Leaders', is undoubtedly a matter of public interest. Numerous journalists, diplomats and human rights defenders have expressed similar concerns that the current situation in Cambodia is not reflective of the ideal enshrined in Cambodia’s Constitution and the promise made to the Cambodian people; that of a functional liberal democracy. This promise was written after a long period of tragedy in Cambodia. However, it is widely agreed that a functioning liberal democracy is still a distant dream for the Cambodian people.

The lack of judicial independence and threats to freedom of expression are two of the many problems in Cambodia that have been identified by numerous authoritative political and media sources. The AHRC is aware of these issues, and works to promote respect for human rights and legal reform in Cambodia through the publication and dissemination of statements and appeals. For example, the recent episode relating 13 women who were arrested and sentenced relating to demonstrations in Boeung Kak lake area. [link: http://www.humanrights.asia/news/ahrc-news/AHRC-STM-112-2012].

The free expression of views by all people is the primary way that a democracy can begin to confront and resolve problems. We hope that more people will peacefully discuss the issues that face their countries, so as to encourage a vigorous democratic discourse on the issues in Cambodia, as well as the issues facing other countries in the Asian region.

Ambassador’s letter:

Dear Sir/Madam

In response to the publication of your article by Dr Gaffar Peang-Meth entitled: Cambodia: Respect ideals and concepts, I have sent Dr Peang-Meth the following response.

In the interests of balance I should be grateful if you will post this letter within the “Views & Opinions” section of your website.

Yours faithfully

 

Hor Nambora

Letter to Dr Gaffar Peang-Meth:

Dear Dr Peang-Meth;

I am responding to your article, Cambodia: Respect ideals and concepts, published by the Asian Human Rights Commission.

AHRC: 2010 the State of Human Rights in Cambodia (Excerpt from AHRC report)

AHRC - 2010 the State of Human Rights in Cambodia

http://www.scribd.com/full/53405380?access_key=key-1fd99yfp5eapb0q1sacp

Cambodia: AHRC expresses sympathy, calls for investigation of stampede

Wednesday, 24 November 2010
Press Release: Asian Human Rights Commission
Rebecca Buckwalter-Poza

The AHRC wishes to express the deepest sympathies to the people of Cambodia in the aftermath of the Bon Om Touk festival stampede that this Monday night left at least 375 dead and 755 injured according to Cambodia’s Bayon TV.

Prime Minister Hun Sen recognized Monday night as "the biggest tragedy we have experienced in the last 31 years, since the collapse of the Khmer Rouge regime." The majority of those who perished were from rural areas. An estimated two-thirds of those who died were women, less able to fight their way from the crowds, indicating the extreme vulnerability of Cambodian women to disaster.

The AHRC calls for the government of Cambodia to adequately care for survivors and the families of those killed. Further, the government must thoroughly investigate the causes of the stampede as well as responses by police, emergency personnel, and hospitals to ensure such a tragedy does not occur again.

While the exact cause of the stampede last night remains unclear, with contradictory reports indicating it may have been instigated by either crowd antics or poor construction of the bridge to Koh Pich island, the failure of the state to control the crowd and limit the damage from the stampede is clear. Eyewitness reports state that the military used water cannons on the crowd after the stampede began, with the effect of causing electric shocks when the water intersected with the electric wiring on the bridge. In addition to death by crushing, suffocation, and drowning, there were multiple deaths due to electricity. The instances of electrocution must have stemmed from either the electric wiring on the bridge or military intervention. In either case, the government must investigate and make restitution.

It is clear, too, that Phnom Penh was unprepared for any large-scale disaster. Responses by police and military were lacking and may even have contributed to the stampede while hospitals were overwhelmed. Emergency and medical personnel resorted to piling bodies together, covering them with mats or sheets. Families were forced to attempt to lift sheets over bodies placed in makeshift morgue tents outside of the hospital or wander through corridors looking for victims. The capital possessed only 60 coffins altogether, requiring that others be gathered from outlying areas in order to provide accommodation for the bodies as they were prepared for identification and transport from the four major hospitals in the area.

About the Author:

Rebecca Buckwalter-Poza is a young American scholar presently engaged with the AHRC as an intern.

About AHRC:

The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Cambodia : Abysmal lawlessness and the powerlessness of the citizens

(October 07, Hong Kong, Sri Lanka Guardian) The first election in post Pol Pot Cambodia was held in May 1993. The new constitution promised a liberal democracy and a system of governance based on the rule of law. However, the country is still in a state of abysmal lawlessness and ordinary Cambodians are powerless. There are no institutions in the country which can offer them any kind of protection. The Cambodian police is in a rudimentary stage of development, is known to be corrupt and completely under the political control of the regime and those who are rich and powerful. Cambodian courts are also known to be corrupt and are used as instruments of political control by way of jailing opposition politicians; people resisting land grabbing; those who express independent opinions and civil society activists who express solidarity with victims of abuse of power. There are no institutions that people can turn to make any complaints or to turn to any kind of help when faced with injustice. And the injustices that the peopl e face are many.

The major complaint everywhere is that of "Land Grabbing". Having a title to a plot of land is normally the ultimate guarantee of some security in this poor country. However, having a title to land is of little use when the same land can be allotted to some company by a government authority, who does not even inform the original title holder when such allocations are made. It is only when the company begins the operation to redevelop the land that the original owners get to know that the land they rightfully own has been given away.

Naturally they protest and at that stage security forces enter the scene and harassment is the result. As the people literally have nowhere to go, they fight back. Then they are brought to courts on all kinds of charges and many are detained. There are thousands of reports of such happenings from around the country. "In the capital, Phnom Penh, 133,000 people -- more than 10% of its population -- are believed to have been evicted since 1990." (This is according to a report of reliable civil society organization).

The result of such land evictions is that those who are displaced are excluded from any benefits, and lose their source of income, they are exposed to poor health and their young face lack of education. In a country, with so little opportunities, eviction from land implies a transformation which ends in destitution. Hopes for stability and a future ends for many. Naturally the women and young and the elderly suffer the most. Naturally, prostitution and other similar problems are on the increase in today's Cambodia.

"The Cambodian courts continue to act on behalf of rich and powerful interests, ignoring the evidence, the Land Law and other relevant legislation, enforcing eviction where ownership remains undecided and imprisoning those who dare to protest", states a report from well known LICADHO, a human rights organization. This view is confirmed by many other organizations and almost everyone.

Cambodian courts are not able to protect land titles. Their function is not the protection of the individual but the interests of those who are in power. The idea of the balancing of interests is an alien concept in Cambodia. The role of the authorities is to protect the state, not the people.

Source: Asian Human Rights Commission

Group Urges Protection of ‘Rights Defenders’

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
04 September 2009

The Hong Kong-based Asian Human Rights Commission issued a statement Friday calling for the government to end its threats against rights defenders in the courts and to instead focus on rights protection in the interest of the public.

The public call comes following the ejection of Pen Bunnar, an advocate for the rights group Adhoc, from Ratanakkiri province, under threat from the provincial court, and charges of incitement against two rights workers in Bantheay Meanchey province.

“The Asian Human Rights Commission strongly urges the Cambodian government to honor all its international human rights obligations, and, in particular, to support the rights of all its citizens, human rights defenders and NGOs to undertake activities that promote and protect human rights and fundamental freedoms in Cambodia,” the group said. “The government and its agents must provide adequate protection to all human rights defenders.”

Pen Bonnar was forced from Ratanakkiri province after the court threatened to charge him with defamation, disinformation and incitement, “apparently under pressure from powerful persons interested in the exploitation of the resources that are supposed to belong to the indigenous people in the area,” the group said.

Om Yienteng, head of the government’s rights commission and a senior adviser to Prime Minsiter Hun Sen, welcomed the message, saying it showed the rights group “believes in the Cambodian government.” However, he said, the group’s concerns were not based on fact.

The rights commission said advocates had “not been secure in their work,” citing 2008 figures from Adhoc of “63 cases of threats of various forms, including arrests, against hundreds of defenders.”

Appointment Of Judges And Prosecutors Is Unconstitutional: AHRC

Monday, 17 August 2009
Press Release: Asian Human Rights Commission

Cambodia: Appointment Of Judges And Prosecutors Is Unconstitutional

Lately there has been a hectic time within the Cambodian judiciary with the actual and planned retirement and appointments of many judges and prosecutors. The government has retired and replaced half of the members, two ex-officio and two appointed, of the Supreme Council of the Magistracy (SCM), the supreme judicial body responsible for the nomination and discipline of judges and prosecutors. A further 27 are also to be retired. In the meantime, some 32 judges and prosecutors, including four who are the de facto age of retirement of 60, have been appointed to new positions.

In a statement dated 7 August 2009 (see CAMBODIA: Law on the statute of judges, not their retirement, is the right end from which to tackle judicial reform), the Asian Human Rights Commission (AHRC) has already pointed out the unconstitutionality of the government’s infringement upon the jurisdiction and independence of the SCM when it had bypassed it and retired and replaced those four SCM members. According to the country’s Constitution, the nomination, including appointment, retirement and transfer, as well as the discipline of judges and prosecutors are the responsibility of the SCM, and not that of the government. The SCM is the supreme body of the judiciary which is chaired by the country’s king and which also has the responsibility of ensuring judicial independence.

The AHRC has also urged the Cambodian government to enact two long-overdue laws which the country has specifically stipulated (Art.135 of the Constitution) and which would provide the legal background and framework for the judiciary as required under Art.14 of the International Covenant on Civil and Political Rights on the right to a fair trial by an independent, competent and impartial tribunal established by law. With the law on the statute of judges and prosecutors, the age of retirement would be officially fixed and known, and actual retirement could be set without arousing any suspicion of favouritism for those who wish to remain in active service.

The AHRC has further noticed that the appointment of judges and prosecutors, as shown in the king’s successive appointment decrees, has not respected the principle of separation of powers and the independence of the judiciary as enshrined the country’s Constitutions (Arts 51 and 128). In these appointments, the Minister of Justice, a cabinet member and also a member of the SCM, has made nomination proposals, received the approval of the SCM and submitted them to the king for signing. For some appointments, the SCM has been bypassed altogether and the proposals directly submitted to the king for signature.

This practice contravenes Art 134 of the country’s Constitution which says, among other things, that “The Supreme Council of the Magistracy shall make proposals to the King on the appointment of judges and prosecutors to all courts.” It should be declared unconstitutional when, according Art. 150 of the same Constitution, “Laws and decisions by the State institutions shall have to be in strict conformity with the Constitution.”

The Cambodian government and its ministry of justice in particular seem to have exploited the absence of the constitutional review or any other forms of judicial review of their decisions and have tried to rule by decree, at least in appointment and retirement of judges and prosecutors. The constitutional review of laws seems clear cut when a specific number of public figures and even ordinary citizens may request for it. However, there is almost a complete silence over the constitutional review of decisions of state institutions, the government and its ministries included. Only a litigant who feels his or her rights are affected by such a decision could raise the issue of its unconstitutionality with the Constitutional Council through the Supreme Court. Unlike in the case of promulgated laws, neither any public figure mentioned above nor any concerned citizen may request for the constitutional review of decisions of state institutions. Nor is the Constitutional Council habilitated to do this constitutional

The AHRC strongly urges the Minister of Justice to respect the principle of separation of powers and the independence of the judiciary and the SCM, refrain from infringing upon the jurisdiction of the SCM, and let this supreme judicial body fully exercise its full constitutional authority over the nomination and discipline of judges and prosecutors. The Minister of Justice should relinquish its control of the SCM Secretariat and transfer it back where it belongs, that is, to the SCM. It should instead secure for the SCM adequate resources to enable it to fulfill its constitutional duties in the nomination and discipline of judges and prosecutors, and in the independence of the judiciary.

AHRC further urges that all decisions of state institutions, including those of the government and the Ministry of Justice regarding the nomination and discipline of judges and prosecutors as well as the independence of the judiciary, should be in strict conformity with the Constitution as specifically stipulated under its Art 150. The Law on the Organization and Functioning of the Constitutional Council should therefore be amended in order to subject such decisions to the same constitutional review as all laws.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Cambodia: Law On The Statute Of Judges, Not Their Retirement, Is The Right End From Which To Tackle Judicial Reform

Sunday, 9 August 2009
Press Release: Asian Human Rights Commission

Cambodia: Law On The Statute Of Judges, Not Their Retirement, Is The Right End From Which To Tackle Judicial Reform

Last June the Cambodian government ignored the jurisdiction of the nomination and discipline of judges and prosecutors of the Supreme Council of the Magistracy (SCM) when it bypassed the court and got the King, who is chairman of this supreme judicial council, to retire and replace half of the eight SCM members. The retired members were Ouk Vithun, Prosecutor General of the Supreme Court, 62, an ex-officio member; Henrot Raken, 68, Prosecutor General of the Appeal Court, another ex-officio member; Khieu Sameth, 62, President of Kandal Provincial Court, an appointed member; and Sin Dim, 66, President of Preah Sihanouk Provincial Court, another appointed member.

The government’s infringement upon the SMC’s jurisdiction is unconstitutional as it violated the independence of the judiciary of which the SCM is an integral part. Apparently the government was not happy with the lack of the SMC’s swift disciplinary action against a provincial prosecutor whose alleged faults had been widely reported in the press.

Perhaps more importantly, the government was not happy with the SCM when the latter had not retired the judges and prosecutors it had proposed. The SCM had its own reasons for not heeding the government’s proposal. It wanted to uphold its independence and exercise its authority over the nomination and discipline of judges and prosecutors.

Even more importantly, there was no law on the statute of judges and prosecutors which should set the retirement age for them. The government has not yet enacted this long overdue law and also the law on the organization of the judiciary when the country‘s Constitution has specifically stipulated the need to enact both laws since 1993. Like the law on the statute of civil servants and the law on the statute of members of the armed forces, which have not been specifically stipulated in the Constitution and which had both been enacted in the mid-1990s, this law on the statute of judges and prosecutors would determine, among other things, the age of retirement for judges and prosecutors. Without this law, the SCM would have no legal basis to retire judges and prosecutors.

The SCM did not comply with a government decree (not a law) which has been echoed by subsequent government circular letters and which fixes the retirement age of 60 for judges and prosecutors when this decree was based on no law on the statute of judges and prosecutors. This inaction has led the government to accuse the SCM of defending certain members of the judiciary who have wished to remain in active service.

Now with a new composition more amenable to the government’s wishes, the SCM sets out to retire some 27 elder judges and prosecutors, retirement which some have seen as part of the long overdue judicial reform.

However, the retirement of the four members of the SCM in June and the planned retirement of a big batch of judges and prosecutors are but palliatives to defuse mounting pressure for judicial reform. These measures have tackled this reform at the wrong end and have in no way come to address the real issue of the legal foundation of Cambodia’s entire judiciary. They have further violated the constitutional principle of the separation of powers, judicial independence and consolidated the executive control of the judiciary.

If the government is not happy with the functioning of the SCM, the Prime Minister should raise the issue with the King who is its chairman when he has an audience with him twice a month (Art.20 of the Constitution). The government should not delay any further the enactment of the law on the statute of judges and prosecutors and the law on the organization of the judiciary so that judges and prosecutors, who belong to the same body of magistrates, would have proper legal status, which they don’t have at the moment, and all courts of law would be duly established by law, which they are not at the moment. Everyone would thus be entitled to be tried by an independent, competent and impartial tribunal established by law, a right which is specifically stipulated under Article 14 of the International Covenant on Civil and Political Rights to which Cambodia is a party.

The government cannot apply the law on the nomination of judges and on the functioning of courts of law enacted in the communist days, prior to the promulgation of the current Constitution, and any decree enacted thereof when they are not among the “Laws and standard documents in Cambodia that safeguard State properties, rights, freedom and legal private properties and in conformity with the national interests, (which) shall continue to be effective until altered or abrogated by new texts” under the transitional article 158 of the current Constitution.

The absence of the law on the statute of judges and prosecutors poses a big problem of legitimacy for the composition of the SCM itself whose three judge members should be elected by their peers, an election which has been held up for 16 years, which is too long. The lack of the legitimacy of the composition of the SCM in turn questions the legitimacy of the composition of the country’s Constitutional Council which is a sort of a constitutional court, whose three members are appointed by the SCM.

The Asian Human Rights Commission (AHRC) urges the Cambodian government to prioritise the building of the legal foundation and framework of the country’s entire judiciary, its organization and the status of judges and prosecutors by enacting the law on their statute, including their retirement age, in tandem with the law on the organisation of the judiciary, two of the important laws that are specifically stipulated in the country’s constitution. This is the right end from which it should tackle judicial reform in Cambodia.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Rights Group Blasts Court System

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
03 August 2009

The Hong Kong-based Asian Human Rights Commission on Monday heavily criticized the Cambodian judicial system as unfair and politically biased, one day ahead of an expected verdict in the defamation case against opposition lawmaker Mu Sochua.

Mu Sochua was countersued by Prime Minister Hun Sen in April, after she alleged the premier had made derogatory remarks about her in the 2008 election campaign.

The Rights Commission said Mu Sochua had not received a fair trial in July and the proceedings were aimed at ending her political career.

“Considering the flaw in the justice system and scheme to end the political activities of the opposition member of parliament, the Asian Human Rights Commission holds that Mu Sochua is denied her rights to a fair trail by an independent, competent and impartial tribunal duly established by law, as stipulated under Article 14 of the International Covenant on Civil and Political Rights to which Cambodia is a party,” the group said in a statement.

Any verdict against Mu Sochua would not carry the authority of a court of law, the group said.

The Rights Commission pointed to Mu Sochua’s inability to find a defense lawyer as part of the problem. Her initial lawyer quit after he was threatened with a defamation suit, and Mu Sochua was unable to find another, she said. She made a brief statement to the court instead.

The group also said almost all the prosecutors and judges in the court were affiliated with the ruling Cambodian People’s Party.

Mu Sochua had her parliamentary immunity suspended by the CPP-dominated National Assembly in June, paving the way for charges against her.

“There was no respect for the principle of natural justice” in her case, the Rights Commission said. “There was no impartial mechanism to examine the charge and to hear the case.”

Government spokesman Khieu Kanharith said Monday the group’s statement was “without reason.”

“The Asian Human Rights Commission never supports the government, but it always supports the opposition,” he said. “The court has not issued its verdict yet. If the Asian Human Rights Commission is really a legal professional, the Asian Human Rights Commission must wait for the decision of the court [to say] whether the decision is fair and in conformity with the law.”

The group was “pressuring the court,” he said. “The government has done nothing with the court at all, but it took legal action to defend honor, while Mu Sochua brought a group of international organizations to write a warning against the Cambodian prime minister.”

Phnom Penh Municipal Court is expected to deliver a verdict in the case on Tuesday.

Group Calls for Safeguards for Prisoners

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
24 June 2009

The Asian Human Rights Commission on Wednesday pushed the government to set up an independent body to prevent the torture of prison inmates and suspects in police custody across the country.

“In the first five months of 2009, there were reportedly five deaths in police custody against three for the whole of 2008,” the Hong Kong-based rights group said in a statement. “The families of the dead and human rights monitors have suspected torture as the cause of death.”

Authorities dismissed the deaths as suicides, but no investigations were ordered and medical personnel were reluctant to counter police reports, the group said, claiming Cambodia had failed to honor its obligations to a UN convention against torture, which it ratified in 2007.

Nouth Sa An, secretary of state for the Ministry of Interior, told VOA Khmer the government was preparing a working group to cooperate with the Asian Human Rights Commission to prevent torture and killings of prisoners.

“We respect human rights,” he said. “A person who is an inmate in prison or in custody of the police is also a human.”

However, the Rights Commission said the ministry had failed “for many years” to permit local rights groups access to police stations, despite granting access to prisons.

The commission noted, however, that in surveys of 18 prisons across the country, alleged torture cases had declined. Allegations at police stations fell from 450 in 1999 to 124 in 2007 and 78 in 2008.

Hang Roraken, prosecutor-general for the Court of Appeals, said the judicial system had worked closely with the Asian Human Rights Commission over the past six months to prevent mistreatment of prisoners.

“I have always advised the prosecutors, judicial police and prison guards to respect the UN convention against torture, not to abuse individual rights,” he said. “In Cambodia, there is no torture in prisons when police detain suspects.”

Cambodia has no anti-torture law, but torture is criminalized and punishable under a new penal code recently approved for National Assembly consideration.

The Government Must Do More To Combat Torture: AHRC

Wednesday, 24 June 2009
Press Release: Asian Human Rights Commission

Cambodia: The Government Must Do More To Combat Torture

Between 1975 and 1979 the Cambodian people suffered one of the world’s most brutal regimes, the Khmer Rouge, which used, among things, torture as a means to assert its rule. In its notorious Tuol Sleng Torture Centre in Phnom Penh, some 16,000 Cambodians died horribly by the systematic use of torture by the Khmer Rouge to extract confessions during the four years of its reign. Now, the man who ran that centre, Kaing Guek Eav alias “Duch”, is being tried by the UN-assisted Khmer Rouge tribunal for torture and other crimes.

Due to this experience, in 1992, upon the end of the war that had followed the ousting of the Khmer Rouge regime, Cambodia did not hesitate to adhere to the UN Convention against Torture (UNCAT) and has since taken measures to combat torture. Surveys among a sample of inmates conducted by a human rights NGO, LICADHO, in 18 different prisons across the country have shown a decline of alleged torture cases, from 450 in police custody and 49 in prison in 1999, to 124 and 78 respectively among the 2,556 inmates interviewed in 2007, and to 78 and 7, respectively among 1,983 inmates interviewed in 2008.

In order to show its commitment, Cambodia ratified the Optional Protocol to this convention or OPCAT in 2007. Unfortunately the Cambodian government has failed to honour its obligations under this Protocol and it has not created, within the OPCAT-prescribed one year period, an independent National Preventive Mechanism to visit places of detention; it has simply pledged to do so by the end of 2010.

For many years the Ministry of Interior has authorized NGOs access to prisons but not to police stations, especially to LICADHO, to provide medical treatment and conduct surveys on the treatment of inmates. Recently, it authorized, on a long term basis, the field Office of the High Commissioner for Human Rights (OHCHR) to conduct visits to prisons, which is going to contribute to the prevention of torture on inmates and the improvement of prison conditions and the treatment of inmates.

For his part, in 2009, the Prosecutor General of the Court of Appeal, with whom the Code of Criminal Procedure enacted in 2007 entrusts the task of inspection prisons and police stations, started a programme of inspection of all prisons and major police stations across the country. One purpose of this programme is to prevent torture in those places of detention. The Court of Koh Kong province has lately convicted a police officer for torture.

The Ministry of Interior and the Prosecutor General’s Office are supporting training for prosecutors, police officers and prison personnel to get them to comply with UNCAT and OPCAT, prevent and combat torture and all forms of ill-treatment in all places of detention, and cooperate with the future National Preventive Mechanism.

Cambodia has no anti-torture law, but torture is criminalized and punishment for it is provided for in the final draft Penal Code which the government is reportedly going to approve and send to the Parliament for adoption in the near future.

However, torture, though in decline, is still being used, mainly to extract confessions. The surveys conducted so far may not reflect the extent of its use when inmates, interviewed in the presence of prison guards, are inhibited by fear of reprisals to tell about the torture they or their fellow inmates have been subjected to. In the first five months of 2009, there were reportedly five deaths in police custody against three for the whole of 2008. The families of the dead and human rights monitors have suspected torture as the cause of death. The concerned authorities have denied the use of torture and usually claimed suicide. But no independent investigation into those deaths has been ordered, and medical personnel called upon to certify such deaths in police custody are known to be reluctant to contradict what the police have said.

For their part, prosecutors before whom the police bring suspects for charging are themselves inhibited to inquire whether those suspects have been subjected to any torture. They do not want to order new investigations into the alleged crime. Nor do they want to investigate torture should they suspect it as they do not want to create any friction with the perpetrator who might be none other than the police themselves. For the same reasons they are not willing to conduct any prompt investigations into torture complaints as called for under the UNCAT.

The Cambodian government must now make greater efforts to honour its obligations under the UNCAT and OPCAT and its commitment to combat torture and protect people’s absolute right to freedom from it more effectively. It should seek expertise and advice from the UN Subcommittee on Prevention of Torture to create a National Preventive Mechanism that meets the OPCAT requirements without any further delay. It should speed up the enactment of the Penal Code under which torture is criminalised.

Considering that the judiciary has a constitutional duty to protect human rights, the Prosecutor General of the Appeal Court should also do more to protect this absolute right. He should create within his office a torture complaint unit to receive complaints from victims or their families. Upon receiving a complaint, he should order the prosecutor under whose jurisdiction the incident has occurred to conduct a prompt investigation, and to report to him any legal action he or she has taken. The prosecutor should also receive such complaints and likewise conduct prompt investigation.

The prosecutor should exercise the power conferred upon them by the Code of Criminal Procedure to inspect prisons and police stations under his or her jurisdiction. Like the Prosecutor General, he or she should be well equipped with adequate expertise, including visit methodology, to avoid negative repercussion of the inspection on persons detained in police custody or in prison such as reprisals against them for telling the truth.

The Prosecutor General should issue a directive to all prosecutors to check whether suspects brought before them bear any physical or mental sign they have been tortured before laying any charge against them. If there is any such sign, they should conduct prompt investigation and take legal action against the perpetrators.

The current Code of Criminal Procedure has not stipulated this examination for sign of torture and legal action by the prosecutor. It should be amended forthwith to stipulate such examination and action not only by the prosecutor but also by the investigating judge and the trial judge. This amendment should also affirm the suspect’s right to legal counsel, medical treatment and contact with his or her family upon his or her arrest. He or she should be promptly informed of this right. His or her counsel should be present during all police interrogation. Currently, the suspect cannot have access to legal council until 24 hours after the arrest and then only for 30 minutes. As to medical treatment and contact with the family, he or she is very much subject to the discretionary decision of the prosecutor and the custody officer.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Judicial Independence Is The Key To Reducing Defamation Lawsuits[-Travesty of Justice is the norm under Hun Sen's Cambodia ... just like under the KR]

Wednesday, 17 June 2009
Press Release: Asian Human Rights Commission

Cambodia: Judicial Independence Is The Key To Reducing Defamation Lawsuits Against Critics And Upholding Freedom Of Expression

Prime Minister Hun Sen is utilising much of the country’s electronic media to assert his leadership of the country and send out messages to his people through his public speeches at different functions. Now and again in such speeches he rebukes his critics and makes disparaging remarks and even or threats against them. At times, such threats have been accompanied by legal action. Such legal action has now become part of Cambodia’s political landscape as Hun Sen himself and other powerful people in his government have sued Members of Parliament (MPs) from the opposition, journalists and human rights defenders for defamation, disinformation and/or incitement. Over recent months, such lawsuits have multiplied.

Mu Sochua, an MP from the opposition Sam Rainsy Party (SRP), sued Hun Sen for defamation. Hun Sen then counter-sued Mu and her lawyer, Kong Sam Onn, for the same offence, following their remarks against him at a press conference. A total of 22 army officers have sued Ho Vann, another MP from the opposition SRP, also for defamation, after Ho had made remarks critical of the degrees they had obtained from a Vietnamese military institute, although the newspaper that had reported his remarks later published his correction. A number of officials working for a Deputy Prime Minister have sued the editor of a newspaper for its stories implicating them in corruption. A student living in Boeung Kak Lake area where residents are facing eviction has been charged and sentenced for writing slogans critical of the government and the company which are responsible for that eviction on the outside wall of his house. Moeung Son, the leader of an NGO called the Khmer Civilisation Foundation has sued a TV presenter, Soy Sopheap, who is very close to Hun Sen, for his remarks critical of him, only to be sued in turn by the government for his remarks critical of the installation of lighting in the country’s famous Angkor Wat temple.

Except for two, all these lawsuits have been filed by powerful figures in the government and by the government. All have used the authority of the government to get back at their critics. In the government’s lawsuits in the past, defendants have all been convicted or have been compelled to apologise to avoid conviction, unless there was strong pressure from inside and outside the country for their release. Some have even fled the country.

Over the last four years the leader of the opposition SRP, Sam Rainsy, was sentenced in absentia after fleeing abroad. He was granted amnesty only to be sued later in 2008 by a senior minister for defamation. Thanks to pressure, the latest lawsuit against him in the Cambodian court was dropped, but that minister has still sued him in a French court as Sam has a dual Cambodian - French citizenship. A broadcaster, Mam Sonando, was arrested twice. Three human rights activists were arrested and a number of others fled the country. Thanks to pressure and their apologies of sort, the broadcaster and human rights activists were released. Some journalists were sued and one was arrested in 2008. Among those journalists several have fed the country. A university teacher and two ordinary people were arrested and had to linger in jail. The teacher was released on bail in March 2009 pending an appeal. In their confrontation with the powerful, the fate of those weak people is no different from that of an egg hitting a rock.

This past experience does not bode well for the defendants in the recent lawsuits. Moeung Son, fearing imminent arrest fled the country. The court has now dropped the charge against Hun Sen in the opposition MP Mu Sochua’s lawsuit against him. In contrast the same court is laying charges against her in his counter-lawsuit against and is requesting the lifting of Mu’s parliamentary immunity for the purpose. Because of such outcomes favourable to the powerful, those lawsuits have further deepened fears that they are eroding freedom of expression and the courts are being used to muzzle government critics

According to the constitution of Cambodia, there is supposed to be a separation of powers and the judiciary is supposed to be independent. Yet in practice, because of various defects, there is no separation of powers and the judiciary is not independent. Almost all, the prosecutors and judges are members of the ruling Cambodian People’s Party (CPP). The President or Chief Justice of the Supreme Court, Dith Munty, is a member of its standing and central committees. Recently, the director of the court of Phnom Penh, Chiev Keng, has been appointed advisor to the president of the Council of Ministers’ Council of Jurists, Sok An, who is a deputy prime minister. The director of the court of Kandal province, Khieu Sameth, and the director of the court of Takeo, Sin Dim, have been appointed advisors to the President of the National Assembly, Heng Samrin, who is the Honorary President of the CPP.

Because of their lack of independence, their rulings in favour of the powerful in lawsuits against their critics, and other defects, courts are widely seen as being used to ‘prosecute political opponents and other critics of the government.’ Though it has denied the judiciary’s lack of independence, the government seems to have recognized, at least implicitly, this serious flaw when, in October 2008, Deputy Prime Minister Sok An announced he was to take action “to enforce discipline and make sure the courts are independent.

In its review in May 2009 of Cambodia’s implementation of the International Covenant on Economic, Social and Cultural Rights, a UN review committee, noted this lack of independence and effectiveness of the judicial system which, it said, “hinders the full enjoyment of human rights including economic, social and cultural rights.” The committee urged the Cambodian government, among other thongs, “to intensify its efforts to modernize and improve the work of the judiciary."

This assessment shows that little has been done to ensure judicial independence. The recent appointment of judges as advisors to the government and the National Assembly has not helped. The latest decisions of the Phnom Penh court to press the charge against opposition MP Mu Sochua and the lifting of her parliamentary immunity and to drop the charge against Prime Minister Hun Sen in their mutual defamation in their recent suit and counter-suit has only highlighted this lack of judicial independence.

This status of the judiciary is totally unacceptable in a country which is supposed to be a liberal democracy governed by the rule of law, and which has undertaken to guarantee and protect human rights, including freedom of expression, and establish an independent judiciary for the purpose. With an increase in the recourse to the due process of law, instead of violent means to suppress criticism, it is more imperative than ever that Cambodia establish an independent judiciary. All constitutional institutions, that is, the Government, the Parliament, the Judiciary itself, the Supreme Council of the Magistracy, the Constitutional Council, the King, and also the legal profession, should discharge their respective duties to bring about this independence.

This whole task would require a comprehensive plan. The following are but a few measures that should be taken as a matter of priority. The law on the statute of judges and prosecutors (altogether belonging to the same magistrate corps), which the country’s Constitution has specifically stipulated, should be enacted without any further delay. It is unacceptable that 16 years after the promulgation of that Constitution in 1993, this particular law has not yet seen the light of day, in contrast to the laws respectively on the statute of civil servants and the statute of members of the armed forces, which are not mentioned in the same Constitution, which were speedily enacted in the mid-1990s.

The judge’s act should clearly stipulate the independence of prosecutors and judges and secure their tenure. It should guarantee and protect their irremovability, and stipulate that they may not be transferred to another position or court without their consent. It should also prohibit their affiliation to political parties. There is no such guarantee for judges and prosecutors at the moment. Almost all of them are affiliated to the ruling CPP. They can be, and have actually been, transferred without their consent. Furthermore, their appointment by the King has shown a strong influence of the government when it has been made by the Minister of Justice and approved by the Supreme Council of the Magistracy (SCM) while it should have been made, as stipulated in the Constitution, by this SCM itself.

The King has a constitutional duty to ensure the independence of the judiciary and he has the SCM, which he chaired, to assist him in this task. The SCM should guarantee and protect this independence and respect the irremovability of judges and prosecutors. It should effectively enforce its Code of Conduct for Judges, and establish fair and transparent disciplinary measures and procedure against them, and also a complaint mechanism and procedure that are easily accessible to the public. It should also challenge any interference in the work of all courts of law and in the independence of judges and prosecutors at the Constitutional Council. At the moment, the SCM has not carried out this task and has shown no resistance to pressure from outside. It has failed to defend the independence of the judiciary.

The SCM has its own structural flaws. It is an integral part of the judiciary and should also be independent. Yet it is not, when most of its nine members are affiliated to the ruling CPP and one ex-officio member, the president of the Supreme Court, is a member of the standing and central committee of that party. The Minister of Justice, and not the SCM, is running the SCM secretariat, and in effect this minister runs this supreme judicial body. In addition the same minister, according to the Code of Criminal Procedure, may order the prosecution of suspects. This order may be legal but it is interference in the work of the prosecution which, according the Constitution, belongs to the judiciary and is therefore independent, and which has exclusive prosecuting power. It is therefore unconstitutional. The SCM should now run its own secretariat and the Minister of Justice’s order to prosecutors should be ceased.

It would be a further help to the independence of the judiciary if training of judicial officers could be entrusted with the SCM. At the moment the Royal Academy for Judicial Professions which trains judges, prosecutors and court clerks is placed under the Council of Ministers and its leadership is composed of officials who are members of the ruling party. Furthermore, the academy’s trainees are urged to vote for that party and upon their graduation, they are also urged to be its members. All these practices should cease, and independence and impartiality, among other ethical values, should be well inculcated in them instead.

Furthermore, the SCM had not been properly formed when three of its members, who are judges, are appointed, and not elected by their peers as stipulated in the law on its organization and functioning. This appointment that has been made since the creation of the SCM in 1994 is supposed to be a temporary arrangement, pending the organisation of the required election .This election cannot be held before the enactment of the Law on the Statute of Judges, but this law has not been enacted yet. This prolonged delay of 16 years, and the continued holding up of the election of those three members is simply unreasonable and unacceptable. They have made the legitimacy of the SCM questionable. Yet this body with dubious legitimacy has appointed three members of the Constitutional Council. The Law on the Stature of Judges should be enacted and the subsequent election of those three SCM members should proceed without any further delay.

For its part, the Constitutional Council (CC) which is the guardian of the Constitution should uphold the separation of powers and the independence of the judiciary as stipulated in the Constitution. So far no case of violation of these constitutional provisions has been raised with the CC although there are instances of such violation. The recent appointment of judges as advisors to the government and to the National Assembly is the latest case of violation.

As the law on the CC stands now, only the King, the Prime Minister, the President of the National Assembly, the President of the Senate, one tenth at least of Members of Parliament or one quarter at least of Senators may file a request for the constitutional review of acts of parliament before and after they come into force. Courts may also file such a request but for laws that have already come into force. Ordinary people may also file a constitutional complaint through the President of the National Assembly, the President of the Senate, one tenth at least of Members of Parliament or one quarter at least of Senators. Regulations or acts of government and decisions of state institutions are outside the CC’s jurisdiction, except when they may affect the rights of litigants.

Litigants in court may file a request for the constitutional review of any provision of the law or any decision of state institutions that they claim affects their rights, through the concerned court and then the Supreme Court. So far, this particular procedure is not widely known, and no litigant has filed any constitutional complaint against decisions of state institutions though there are such decisions that affect their rights and also the independence of the judiciary. Eviction orders issued by different local authorities and courts have affected evictees’ rights to housing and just compensation and their constitutionality should have been challenged at the CC. Yet no constitutional complaint has been filed against such decisions even when eviction cases have been brought to court.

There is a need to raise the awareness of this procedure among the public at large and among the legal procession in particular, so that they can make use of it to protect litigants’ rights and contribute to strengthening the independence of the judiciary. The jurisdiction of the CC and the constitutional complaint procedure should be enlarged to cover not only acts of parliament but also decisions of state institutions. The President of the National Assembly, the President of the Senate, Members of Parliament and Senators, as well as the public, should have power to file constitutional complaints against not only acts of parliament, which is the case at the moment, but also decisions of state institutions.

The CC, like the SCM, suffers from lack of independence and has dubious legitimacy. It has nine members, three nominated by the King, three by the National Assembly and three by the SCM. Almost all its nine members are affiliated to the ruling party. The nomination of its three members by the SCM has dubious legitimacy when the legitimacy of the SCM itself is dubious since three of the SCM’s own members are not elected as they should be.

In order for the judiciary to be independent, it is imperative that these two top state institutions themselves, the SCM and the CC, be independent and have unquestionable legitimacy. Their respective members’ affiliation to political parties should be prohibited. The Constitutional Council should be more active and act on its own to defend the Constitution, the separation of powers, the independence of the judiciary and human rights.

In order to ensure its own legitimacy and that of the SCM, the Constitutional Council should declare that the prolonged delay in enacting the law on the statute of judges is an omission, and this omission is unconstitutional. In this ruling it should set a deadline for the enactment of this law on the statute of judges and for the organisation of the election of three judges to serve as members of the SCM.

With independence and unquestionable legitimacy and enlarged jurisdiction, the Constitutional Council can effectively ensure the constitutionality of all acts of parliament and decisions of state institutions, uphold the separation of powers and the independence of the judiciary, including the independence of the Supreme Council of the Magistracy, courts of law and judges and prosecutors. With such independence, courts cannot be easily used to persecute members of the opposition and other government critics, contributing thereby to reducing the government’s defamation and other lawsuits against them and, in the end, to upholding freedom of expression.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Cambodia: The Government Must Ban Social Control That Violates Human Rights

Tuesday, 9 June 2009
Press Release: Asian Human Rights Commission

Cambodia: The Government Must Ban Social Control That Violates Human Rights

Cambodian society was under communist rule for some 15 years before the international community helped it to embrace liberal, pluralistic democracy with rule of law and respect for human rights at the beginning the 1990s. It has in many ways become an open society where people can enjoy property rights, freedom of enterprise in a free market economy, freedom of movement inside and outside the country, access to education and other public services, and a number of other rights. However, many forms of social control and the dysfunction of the institutions for the rule of law have limited or denied altogether the enjoyment of such rights and freedoms.

A recent story of the search by an NGO for a venue to hold a public forum in an area in Phnom Penh is a starkly insidious instance of such control.

Upon requests from residents of the Boeung Kok Lake, Srah Chak commune, Daun Penh district, the Cambodian Centre for Human Rights (CCHR) planned to hold a public forum for the residents, municipal and other concerned officials, to meet and address the issue of eviction without just compensation. The municipal authorities have leased the natural lake called Boeung Kak and its surroundings to Shukaku Inc., a private development company owned by a Senator from the ruling Cambodian People’s Party (CPP), for a period of 99 years for US$79 millions.

Shukaku then started to fill in the lake. This filling has subsequently flooded and destroyed houses and roads in the area and the dispute over compensation has not been resolved. The authorities have ignored the repeated requests of the residents for just compensation and also their request that the company should cease filling the lake. The authorities have instead pressurised the residents to accept the compensation package they set for them. Such pressure, together with the continuing filling of the lake is but a slow forced eviction of those people.

The CCHR is widely known for the public forums it has organised across the country for people with grievances and concerned government officials to come together in an effort to address these grievances. On 20 April 2009 the CCHR assigned an officer to contact different people in the lake area to find a venue for the forum. He identified the big mosque in the area as a very suitable place. The officer approached the caller of the mosque who was, at that time, willing to accommodate their request and let the CCHR use its yard for the forum. However, the caller instructed the CCHR officer to first secure an authorization from the local authorities, and an endorsement from a prominent Muslim leader and member of the mosque’s committee named Ahmad Yayha. This prominent committee member is a former Member of Parliament who defected from the opposition party to the CPP.

The next day the same officer together with a colleague was looking for other venues and approached a Buddhist monastery, also not far from the lake. The monastery’s secretary rejected his request out of hand and refused to allow them the use of the monastery’s yard. His reason was his fear of losing a big grant from two prominent ladies who were sponsoring the construction of a building within the monastery. One lady is the widow of the country’s top police officer who was a prominent member of the CPP. The other lady is the wife of a current deputy prime minister.

The two CCHR officers then tried to secure the venue at the mosque and followed the instructions the caller of the mosque had given. On 24 April they managed to contact Ahmad Yahya and asked him for permission to use the mosque. He told them to contact a Senator named Van Mat also from the CPP and chairman of the mosque’s committee. They contacted Van Mat who then told them to secure a permit from the Municipality, implying that with this permit the mosque’s yard could be used as the venue of the forum. They then applied for a permit to the Municipality of Phnom Penh.

Later on Van Mat changed his mind and told the CCHR officers the mosque could not be used for such a forum as it was against Islamic rules, while the Municipality also informed them it had no authority over the mosque and was not in a position to give any permit for the utilization of its premises. Unable to find the venue, the CCHR cancelled the planned forum.

The following day, a resident who was helping to distribute leaflets calling the lake residents to the forum was summoned to see officials of Srah Chak commune where the lake is located, simply to be warned of the consequences of her activity. “Why do you continue to call and incite residents to go to the meeting now that the forum has already been called off? You should quietly contact the company. Beware! You could be sent to prison.” So they told her.

The CCHR did not abandon the forum in the same area and its officials continued the search for a venue. On May 25 a resident found them a guesthouse called the Lazy Fish which was willing to rent its premises as the venue for US$250. They booked the place and made a deposit of US$50. The forum was then planned for 12 June.

Hardly a week later, on 1 June, the head and deputy head of village 6 in Srah Chak commune chief went to threaten the owner of the quest house, saying: “If you let the CCHR conduct the public forum, your quest house will close after the forum.”Several days later the owner was summoned to the commune office. After his meeting with the commune officials, he informed the CCHR that he no longer wanted to rent his place for its forum unless the CCHR could secure a permit from the municipal authorities.

On 8 June the authorities shut down that guesthouse on the allegation that “its business licence had expired.” As a result the prospects of the Boeung Kak Lake residents being able to exercise their right of assembly and expression through a public forum and of getting the authorities to address the compensation issue with them through that venue was practically closed.

The Asian Human Rights Commission (AHRC) therefore urges the Cambodian government to honour its human rights obligations and take immediate action to ban all forms of social control that blocks and impedes the exercise of human rights by its people. The Cambodian government should order the Municipality of Phnom Penh to abandon any attempt to deny the Boeung Kak Lake residents and the Cambodian Centre for Human Rights their right to hold a public forum with all concerned officials to address the issue of eviction and compensation for those residents.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

CAMBODIA: The Bar Association must not be an instrument to curtail professional freedom

FOR IMMEDIATE RELEASE
AHRC-STM-100-2009
May 8, 2009

A Statement by the Asian Human Rights Commission

The international norms and standards relating to the legal profession require that the lawyers could practice their profession without fear and intimidation. The professional rights of the lawyers have been recognised globally. The lawyers in Cambodia have the same status and the rights as their counterparts in other countries. The exclusive purpose of a Bar Association is to protect the independence and the integrity of the legal profession. Above all, the Bar must protect the lawyers from interferences by the executive. A recent case against Kong Sam Onn where an investigation against him has started by the Bar Association of Cambodia regarding acts he did in relation to his professional duties raise concerns about the threats to the legal profession in the country.

On 23 April, Kong Sam Onn, a lawyer, was present at a news conference where his client, Mu Sochua, a female Member of Parliament (MP) for the opposition Sam Rainsy Party, announced her defamation lawsuit against Prime Minister Hun Sen. She alleged derogatory remarks made against her in a public speech in Kampot province in early April. In that speech Hun Sen called an unnamed woman "cheung klang", a Khmer phrase (literally strong leg) meaning "gangster", and said that she had embraced an army officer and sued him afterwards. Mu took these together with other remarks as targeting her, not any other woman, as they matched her status and activities.

Several days later, on 27 April, Hun Sen countersued Mu and her lawyer Kong Sam Onn for their respective alleged defamatory remarks made against him during a news conference.

Hun subsequently called for the suspension of Mu's parliamentary immunity so that the courts could prosecute her. He was confident that this suspension would be "as easy as ABC", while his own suspension would be unlikely as his party has an overwhelming majority in Parliament. This call has been viewed as a threat to and intimidation against the opposition MP.

Several days later, on 30 April, Hun Sen's lawyer, Ky Tech, filed a complaint with the Bar Association of the Kingdom of Cambodia against Kong. It was lodged for the latter's remarks against Hun Sen during and after the news conference together with his alleged violation of the code of ethics for lawyers. Ky's complaint has prompted action by the Bar due to his influence as their former president and a government lawyer. The Bar has started its investigation which could lead to a range of disciplinary actions including Kong's debarment, which has already been mentioned. Chiv Senghak, the current President of the Bar, said that Kong could receive a warning, have his license suspended, or be debarred as a legal professional altogether. But Chiv did not prejudge the outcome; it would be up to the decision of the Bar's Disciplinary Council.

Kong has maintained that his remarks are not defamatory. He has made them in the defense of his client in his capacity as a lawyer and has not violated in any way the code of ethics for lawyers. During the news conference on 23 April, he said that his client Mu Sochua was the target of Hun Sen's derogatory remarks even though Hun Sen did not name her specifically. To pretend otherwise would be a "cowardly act", he asserted. He called Hun Sen's remarks insulting and inappropriate. He urged Hun Sen to imitate the Thai foreign minister who had apologized to Hun Sen, roughly a month previously. After that minister had called Hun Sen "nak leng", an appreciative Thai phrase meaning "lion-hearted and courageous" but with its derogatory Khmer equivalent meaning of "gangster".

Such remarks by Kong against Hun Sen do not seem to be specifically proscribed by the Law or the Bar Association of the Kingdom of Cambodia of 1995 or by the Code of Ethics for Lawyers which the Bar had issued in the same year.

Ky's complaint and the Bar's subsequent action together with Hun Sen's lawsuit were probably meant to serve as a threat and to intimidate Kong, a lawyer who had the audacity to make unpleasant remarks against the Prime Minister, known as "the Strongman of Cambodia". If tolerated, such a threat and intimidation would further enhance the known government control of the legal profession, undermine the independence of the Bar which is clearly stipulated under Article 1 of the Law on the Bar, and also prevent lawyers from playing their role as officers of the court.

At the individual level, the Bar's investigation into the defamation complaint against Kong, its outcome, and the action eventually taken against Kong Sam Onn are very much prejudicial to his case in court where he is facing the same charge. The plaintiff will use them in court to support the charge against him thereby swaying the court's decision against him. All these developments, beginning with Ky Tech's complaint with the Bar, will further reduce the chance of Kong having a fair trial with courts already under executive control.

The Asian Human Rights Commission (AHRC) urges the Bar Association of the Kingdom Cambodia to ensure that the lawsuit and the complaint against Kong Sam Onn will not have any negative consequence on the independence of the legal profession and his case in court. It should uphold this independence and withstand any external pressure. The Bar, with regard to Kong's case, should hold its investigation in abeyance, if such an investigation is called for, until the court has adjudicated the defamation lawsuit against him. As a matter of urgency, it should set out to ensure that Kong, a member of the Bar, has a fair trial in court.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Freedom of expression and assembly seriously undermined

Cambodian Center for Human Rights

Joint Media Release by the Cambodian Center for Human Rights (CCHR) and
the Asian Human Rights Commission (AHRC)

Phnom Penh, 22 April 2009
For Immediate Release

Joint submission for the Universal Periodic Review (UPR) of Cambodia’s Human Rights record - Freedom of expression and assembly seriously undermined

The Cambodian Center for Human Rights (CCHR) and Asian Human Rights Commission (AHRC) are pleased to announce that a coalition of non-governmental organizations (NGOs) - coordinated by the Alliance for Freedom of Expression in Cambodia (AFEC) and assisted by the Asian Legal Resource Centre (ALRC) - has made a joint submission on freedom of expression and assembly in Cambodia to the Office of the High Commissioner for Human Rights (OHCHR) in Geneva, for inclusion in its summary of stakeholder information for the purposes of the Universal Periodic Review (UPR) of Cambodia’s Human Rights record.

The submission shows that the last four years have seen freedom of expression and assembly in Cambodia seriously undermined, with opinion restricted, parliamentarians silenced, the media controlled, access to information blocked, and assembly and public demonstration prevented. The Royal Government of Cambodia has breached its international and constitutional human rights obligations, and has relied on national legislation which itself breaches these obligations.

In order to improve this situation, the coalition of NGOs urges the Government to properly respect freedom of expression and assembly and to implement a series of recommendations, including:

• i. Ratify the First Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) to enable Cambodians to submit complaints to the Human Rights Committee relating to violations of their freedom to expression and assembly, and other human rights.
• ii. Invite the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression to visit and assess the situation in Cambodia, and to make recommendations.
• iii. Work with other ASEAN member states to create an ASEAN Human Rights body in 2009.
• iv. Establish an independent National Human Rights Commission in 2009, in keeping with the Paris Principles.
• v. Publicly endorse the Johannesburg Principles and work with NGOs to formulate a freedom of expression and assembly strategy as part of a wider human rights action plan.
• vi. Decriminalize disinformation and defamation in the course of reforming the criminal law.
• vii. Invite experts including the international NGO Article 19 and the United Nations Educational, Scientific and Cultural Organization (UNESCO) to assess and recommend amendments to the 1995 Press Law and 1991 Law on Demonstrations. Implement these newly amended laws.

The coalition of NGOs includes: Advocacy and Policy Institution (API); Asian Legal Resource Centre (ALRC); Cambodian Human Rights and Development Association (ADHOC); Cambodian Association for Protection for Journalists (CAPJ); Cambodian Center for Human Rights (CCHR); Cambodian Center for Independent Media (CCIM); Cambodian Center for the Protection of Children’s Rights (CCPCR); Cambodian Independent Teachers Association (CITA); Cambodian Independent Civil Servants Association (CICA); Cambodian League for the Protection and Defence of Human Rights (LICADHO); Center for Social Development (CSD); Center for Civil and Political Rights (CCPR); Coalition of Cambodian Apparel W.D.U. (C-CAWDU); Committee for Free and Fair Elections in Cambodia (COMFREL); Community Legal Education Center (CLEC); Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC); Independent Democratic of Informal Economic Association (IDEA); International Federation of Human Rights (FIDH); Khmer Kampuchea Krom Human Rights Association (KKKHRA); Khmer Youth Association (KYA); Legal Aid of Cambodia (LAC); Neutral & Impartial Committee for Free and Fair Election in Cambodia (NECFEC); People Center for Development and Peace (PDP-Center); Project Against Domestic Violence (PADV); Southeast Asian Press Alliance (SEAPA); and Star Kampuchea.

The full submission is available at www.cchrcambodia.org.

Cambodia: Government against prosecution of more Khmer Rouge leaders

FOR IMMEDIATE RELEASE
AHRC-STM-080-2009
April 7, 2009
A Statement by the Asian Human Rights Commission

In the immediate period leading to the trial of Khmer Rouge Prison Chief Kaing Guek Eav, alias Duch, on 30 March, there was a disagreement between the international and the national co-prosecutors of the Cambodian UN-assisted Khmer Rouge Tribunal (KRT) over the prosecution of more Khmer Rouge leaders in addition to the five who have already been arrested and detained and who are awaiting trial. According to KRT, the international co-prosecutor, Robert Petit, has proceeded to "open new judicial investigations against certain additional suspects , saying that there are reasons to believe that (1) the crimes described in those submissions were committed, (2) these crimes are within the jurisdiction of this Court, and (3) they should be investigated by the Co-Investigating Judges. KRT said that Petit does not believe that such prosecutions would endanger Cambodia s peace and stability."

For her part, the Cambodian co-prosecutor, Chea Leang, "believes that these investigations should not proceed on account of Cambodia's past instability and the continued need for national reconciliation, (2) the spirit of the agreement between the United Nations and the Government of Cambodia ("Agreement") and the spirit of the law that established this Court ("ECCC Law"), and (3) the limited duration and budget of this Court." She "feels that this Court should instead prioritize the trials of the five suspects already detained" and "maintains that this Court's mandate can be adequately fulfilled by the prosecution of the suspects already detained."

The Cambodian government has taken side with the national co-prosecutor but has stopped short of taking any direct action to end these additional prosecutions or thwart the KRT Pre-Trial Chamber to adjudicate the disagreement between the two co-prosecutors. It has preferred to beat the bush about to achieve the same end. In February, referring to their continued recognition of the Khmer Rouge after the latter s ousting, Prime Minister Hun Sen lambasted, saying that the UN and countries that supported (Khmer Rouge Leader) Pol Pot to occupy (Cambodia's) seat at the UN from 1979 to 1991 should be tried first... They should be sentenced more heavily than Pol Pot."

Later on, in March, the government spokesman and Minister of Information, Khieu Kanharith, amplified his Prime Minister s unhappiness and urged the KRT to deal with the five suspects it had detained, accusing KRT foreign staffs of dragging their feet so as to get more salaries. He said: they have not even heard one case, yet they have created another. They are simply dragging their feet so as to receive more salaries. If they really want to push the process forward, when they have five cases at hand, they should hear these five cases first. When they have finished with them, then they can think of others."

However, these messages do not seem to have the desired effects and dampen pressure for more prosecutions. On 31 March, the second day of Duch s trial, in a speech at a road inauguration in a costal province, Hun Sen came to the open to forcefully oppose the prosecution of any more former Khmer Rouge leaders. He said: they have gone about telling people that they will also prosecute all those brothers, that is, down to (Khmer Rouge) army division commanders. I'm telling them this: I will allow this tribunal to fail, but I will not allow Cambodia to have another war. This is an absolute stand. Please prosecute only those people (in detention)."

Referring to KRT's on-going financial difficulties, Hun Sen did not welcome Japan s recent aid of US$200,000 to the tribunal for the payment of staff salaries, on top of its contribution to half of the tribunal s original budget of US$56 million, saying: "I m not happy that Japan donated money to the United Nations to prosecute the Khmer Rouge because I wish for the tribunal to run out of money."

Hun Sen s "absolute stand" against any further prosecution is but a blatant interference in the tribunal's work, interference that has been most feared since 1999 when the government had changed its mind and insisted upon a Cambodian trial instead of an international one as it had originally requested the UN to create in 1997. His stand has violated the principle of separation of powers, the independence of the judiciary and the prosecutors' exclusive power to prosecute, which are all enshrined in Cambodia's Constitution. It has also violated the Cambodian Code of Criminal Procedure under which no one can order a prosecutor not to prosecute.

Furthermore, the same stand breached the law on the Khmer Rouge Tribunal, which gives this tribunal all power to bring to trial Khmer Rouge leaders and those most responsible for crimes committed under their regime and also Article 20 of the same law on the settlement of the difference between the co-prosecutors by a pre-trial chamber.

Hun Sen s preference for the tribunal s failure and his displeasure with the donation which keeps it afloat has confirmed the doubts about his seriousness about the Khmer Rouge trial right from the beginning of his government s negotiations with the UN in 1999. These negotiations took eight years before the tribunal could see the light of day in 2007. It has also confirmed the on-going suspicion that the Cambodian government wants to control the tribunal.

When invoking the prospects of another war if there were more prosecutions, Hun Sen seemed to contradict his own ability and success, in the second half of the 1990s, in ending the war which the Khmer Rouge continued to wage and which the UN had failed to end with its huge peace-keeping force that administered Cambodia in 1992-93. In 1996, while the Khmer Rouge were still a force to be reckoned with, Hun Sen had maneuvered to split the Khmer Rouge, enticing one group under Ieng Sary, now an accused before the tribunal, to defect to the government s side.

Two years later, in 1998, he succeeded in coaxing the rest under Nuon Chea and Khieu Samphan, now also awaiting trial, to surrender to his government. He also succeeded in arresting the late Ta Mok, the notorious and feared one-legged Khmer Rouge army commander, next to Pol Pot, who was still rebellious. With this surrender, all the Khmer Rouge politico-military apparatus was completely dismantled.

Nowadays, after more than ten years of their defection or surrender, the bulk of Khmer Rouge cadre is living scattered in their zones bordering Thailand. All senior cadres and some rank and file, that were already fractious before the final surrender, have since been integrated in the national army and the civil service. The rest have been pursuing their separate ways of life far different from their proletarian days. Some senior army commanders have even become more like feudal lords possessing big land holdings. Many of the former cadres have grown old and weary by the prolonged struggle in the jungle.

Among all of those remaining Khmer Rouge leaders and rank and file there is no leader of prominence who could replace the former leaders who have died or have been detained and mobilise their former comrades to make a war if the few senior military commanders Hun Sen has cited are arrested by the Khmer Rouge Tribunal. The prospects of any other Khmer Rouge leader identified by KRT for prosecution starting another war seem very remote. Furthermore, the country is far more united behind the government, and the Cambodian security forces are much stronger and more able to quell any rebellion.

The invocation of another war was but a scare mongering tactic to stop the tribunal from doing its work to uncover the truth about the Khmer Rouge crimes and to deliver justice to the victims.

The Asian Human Rights Commission (AHRC) therefore urges the Cambodian government to refrain from interfering in the work of the Khmer Rouge Tribunal, to respect its independence and to lend its full cooperation whenever this cooperation is needed. The Cambodian government should provide it with its full share of funding and appeal to the international community to make adequate contributions for its functioning.

NGOs Worry Over Intent of New Law

By Taing Sarada, VOA Khmer
Original report from Washington
31 March 2009

A draft law to tighten control over Cambodia’s many non-governmental organizations is nearly completed and will soon be at the Council of Ministers for final approval before moving on to the National Assembly.

Rights groups and other watchdogs are increasingly worried over the motives behind the law, which they say will erode freedoms. But government officials say the law is needed, to watch the watchers.

In a statement issued earlier this month, the Asian Human Rights Commission warned that the ruling Cambodian People’s Party could be using its landslide victory in elections last year—where it won 90 of 123 National Assembly seats—to pass laws that favor the party and ignore constitutional freedoms.

“If the government adopted this law, it could strongly control and reduce political, social and economic rights,” Rights Commission researcher Lao Monghay told VOA Khmer in a phone interview last week.

Government officials say the law has been drafted with the constitution and UN charters in mind.

Om Yentieng, who heads the government’s rights committee and is an adviser to Prime Minister Hun Sen, said the Rights Commission was making recommendations from “blindness,” having not seen the draft.

“Now we don’t know how to please those people,” he said.

Local rights groups also worry the new law could mean a crackdown. They say other laws need more attention.

“The Cambodian government should focus its efforts on establishing the necessary corruption law and bettering the penal code,” Kek Galabru, president of the rights group Licadho, said.

An anti-corruption law, despite urgent encouragement by donors, has remained in a draft stage for years. Om Yentieng said the government is taking all laws in stride, but the high number of non-governmental organizations in the country need regulation.

However, the fear is that the intent of the law is not to regulate, but to pressure rights organizations and others, Brad Adams, Asia director for Human Rights Watch, told VOA Khmer in a phone interview.

“I think the purpose of Hun Sen is to have an NGO law that allows the government to control their activities and to ensure that they don’t criticize the government, and that kind of law should not be passed,” Adams said.

As a developing country, Cambodia remains heavily reliant on non-governmental agencies, which provide anything from health care to agricultural development, food aid, and rights monitoring.

Ho Van, a lawmaker for the opposition Sam Rainsy Party, said rural Cambodians especially rely on these organizations.

“The duties of NGOs are to push the government to take action and bring justice for the people,” he said. “If those NGOs work under restrictions and pressure by the government, then the innocent Khmer people and victims won’t have a way to complain for solutions at all.”

Without the rights protection afforded by NGOs, Cambodia’s democratic standing could slide quickly, Kem Sokha, president of the Human Rights Party, said in an interview.

Prior to its sweeping win in elections last year, the CPP-led government delayed democracy “little by little,” he said, “but now it has a strong enough voice to start reducing democracy. It is reducing the democratic process now.”

Kem Sokha was the head of the non-governmental Cambodian Center for Human Rights before he went on to found his party ahead of last year’s election, where his candidates won three seats in parliament.

A main worry in the Law on Organizations is a requirement for groups to report their activities and financial expenditures to the government. This was not necessary, as such groups report to their donors, which is enough, he said.

However, a spokesman for the Ministry of Interior, the ministry responsible for up to 80 percent of the draft, said the law is necessary to monitor the financial activities of NGOs that are currently “riding a horse with free hands.”

The law will require re-registration for all NGOs with the Ministry of Interior, the spokesman, Lt. Gen. Khieu Sopheak, said.

“This is a big thing for them,” he said. “What they have, where they’ve received financing from, where are their resources, how many millions do they spend in a year, what have they spent it on, doing politics or whatever: these all need to be transparent.”

The part of the law addressing political activities is of concern, because many roles of organizations, if broadly defined, can be considered political, said Rafael Dochao Moreno, the European Commission’s representative in Cambodia.

“Government officials and NGO representatives, they have to sit together…to see whether or not…proposals of civil society organizations could be incorporated into the text of the law,” he said.

Organizations like the Cambodian Center for Human Rigths, Licadho, and others often criticize the government directly, focusing on government policy, law enforcement, or the courts, which are widely held as politically biased.

With government restrictions written in a new law, these groups won’t be able to do their work at all, said Ou Vireak, director of the Cambodian Center for Human Rights.

“I think that they have made a law that is not parallel to the democratic process,” he said.

Cambodia: Eliminating opportunists in land disputes requires effective local administration and proper public consultations

Friday, 20 March 2009
Press Release: Asian Human Rights Commission

The Cambodian government’s drive for the all out development and beautification of urban centres has created one of the most serious problems for its people. This particular problem is widely known as land grabbing. It is characterized by the grabbing of the land belonging to the poor and weak with unjust or no compensation, by the rich and powerful. Over recent years, and very likely in the years to come, land grabbing has and will affect hundreds of thousands of such people.

In many cases, victims of land grabbing have protested their evictions when they felt the compensation was unjust. This resistance has invariably ended up with the authorities using brute force to evict residents from their homes and lands. The latest of such brutal forced evictions took place in January 2009 when, in the early hours of the morning, hundreds of armed police and company workers, backed up by demolition machines, went to demolish hundreds of homes in the Dey Kraham community in the centre of Phnom Penh and forcibly trucked the residents away to a resettlement area.

In many land grabbing cases, the authorities have claimed that opportunist people had moved on to the land and pressed for compensation when such land was state property now used for other purposes or after such land had been made into private property or granted as concession to the rich and powerful for economic purposes. The claim of the presence of such opportunists has weakened the resistance and demand for just compensation of bona fide residents on the concerned land. As mentioned above, when they are poor and weak, such resistance and demands have eventually lead to their forced eviction.

Very recently over 50 people from the remote northern province of Oddar Meanchey went to stage a protest in front the Prime Minister’s residence on the outskirts of Phnom Penh to request him to get fair compensation for them from a sugar plantation company which had allegedly grabbed their land. But this company claimed that it had received this land as a concession from the government for a sugar plantation. The provincial governor, Pich Sokhin, said more than 200 families affected had already agreed to accept compensation ranging from US$300 to 1000 per family. However, Pich said, when the company started the plantation of sugar cane some local villagers and other people from other provinces moved on to the land and built small cottages with the intention of causing trouble and claiming compensation from the company.

Earlier on, in November 2008, armed police and soldiers used force and fire to evict hundreds of families in an area which the authorities said was located in a state-owned land, which was part of the Bokor National Park in the province of Kampot. The park’s director, Chey Uterith, said that those families had built small homes in that part of the park in the previous year. Chey accused them of grabbing the land with the intention of selling it to others. They then move on to a new site and repeat the process.

The presence and demand for compensation of such opportunists who have moved on to the land in dispute, national parks or the like could have been avoided if the concerned public authorities, especially the local authorities, were effective in the administration of the territory under their jurisdiction. As monitors have observed, in all elections, those local authorities are very effective in identifying people who are supporters or not supporters of the ruling party, and use their influence on them and pressurize others to vote for this party.

If they are that effective, they should also be able to identify people who are residents and know the exact location of their homes under their jurisdiction. Furthermore, they should be able to recognize all new people who have moved on to the disputed land and take necessary measures to prevent them from doing so at the outset. They could for instance get court orders to get them out of the land and/or prevent their construction work. At the very least they could distinguish the newly built homes from the older ones of the bona fide residents and legitimate claimants for compensation. The governor of Oddar Meanchey province and the director of the Bokor National Park could have and should have stopped those opportunists from moving on to that land for sugar plantation and that park, respectively, right from the start when they knew of their first move. These two officials have yet to explain their inaction at the time.

Furthermore, the problem with these opportunists could have been avoided. The distinction between them and those bona fide residents and legitimate claimants could be made a straight forward and perhaps disputes could have been avoided altogether if all the concerned authorities were to effectively enforce and comply with the Land Law of 2001 and all the regulations thereof.

The Land Law determines the ownership and acquisition of land. A government Sub-Decree on Economic Land Concession issued thereof, dated 27 December 2005, sets out a detailed procedure to be followed by all concerned authorities before deciding to grant any concession of land for economic purposes. Article 4 of this sub-decree for instance lays down a set of criteria that must be met first. For instance, the use of the land whose concession is under consideration must be consistent with the land use plan adopted by the Provincial-Municipal State Land Management Committee (Criterion 2), and there must be public consultations with territorial authorities and residents of the locality (Criterion 5). Not all residents have to be included in these public consultations, however, when Article 35 of the same sub-decree stipulates that the concession granting authority has to organize such consultations with territorial authorities and “representatives of local residents.”

Large numbers of residents may justify this limitation of consultations to representatives of local residents. But for these consultations to yield binding outcomes and to avoid disagreements and protests from any other residents, the concession granting authority must ensure that these people are genuine representatives of all residents and are not handpicked or selected by it or any other authority or the applicant for the concession, and that these representatives are subject to no influence or pressure whatsoever. Such consultations would help ascertain further the bona fide residents and henceforth thwart any attempt by opportunists to move on to the concerned land to demand compensation.

Effective public administration and compliance with the Land Law and the regulations thereof, especially the Sub-Decree on Economic Land Concession, could not only thwart attempts by opportunist to make money out of moving on to the lands of others, but could also go some way to avoid land disputes and address the land grabbing problem.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.