Cambodia still remains an authoritarian state ... The constitution is only a decorative façade.

Cambodia’s legal system

Excerpt from "The state of human rights in eleven Asian nations - 2010" by AHRC

Cambodia still remains an authoritarian state despite of it having a constitution based on liberal democracy and holding periodic elections. Liberal democracy was never a reality due to the nature of the Cambodian judicial system. The Cambodian “judicial system”, which was created with the advise of Vietnamese experts during 1980-90 period remain intact, despite numerous trainings of judges on liberal democratic principles. The over 84 The state of human rights in eleven Asian nations - 2010 all system does not allow practice of such principles, the judiciary is expected to be under the complete control of the executive.

The actual model of administration of the country is not based on the constitution introduced in 1993, but it based on a model of administration created during the earlier administration 1980-1993, in which the executive had the complete control over the system. The executive exercised his control through the party. The system of administration controlled by the executive and assisted by the ruling party is what still exists today, as the real political stem of Cambodia. The constitution is only a decorative façade.

Labor Leader Cautions Against Hun Sen Intervention

Chea Mony, president of Cambodia's Free Trade Union of Workers. (Photo: ASSOCIATED PRESS)

Sok Khemara, VOA Khmer
Washington, D.C Friday, 01 October 2010

“If I'm a worker, I'm happy when an employer wants to file a complaint but where the prime minister asks that it be stopped.”

The intervention this week by Prime Minister Hun Sen in a series of labor disputes could please workers but upset investors, a trade union representative said Thursday.

In public statements on Wednesday, Hun Sen urged the courts to drop a number of cases brought by factories against labor leaders, following a general strike in mid-September. The factories had been insistent on charging some union representatives for the strike, which managers called illegal.

“If I'm a worker, I'm happy when an employer wants to file a complaint but where the prime minister asks that it be stopped,” said Chea Mony, president of the Free Trade Union of Workers of the Kingdom of Cambodia, as a guest on “Hello VOA.”

“But if the courts say they are independent, they can't accept the prime minister's request,” he said. “That's the problem.”

The Free Trade Union was not among those who went on a four-day strike last month, but it is one of the most powerful unions in the garment sector.

Since the strikes, workers and managers have sought to simplify the negotiation process, but it remains unclear how far factories are willing to go to increase the incomes of workers, especially in a tightened global marketplace.

Chea Mony, whose brother and former president of the union was murdered in 2004, said the best way to deal with the current dispute is to find a compromise, before both sides lose.

“The workers need factories and factories need workers, so one side should not upset the other,” he said.

He also cautioned against the court's simply taking the lead of a single individual, which erodes the confidence of investors in Cambodia's dedication to the rule of law.

Worried investors may well decide instead to take their businesses to other countries, such as Bangladesh, Kenya or Nepal, he said.

UN Special Rapporteur criticizes Cambodia's Judiciary

Report by Yun Samean, Radio Free Asia
Video by Uon Chhin

Shifting Burden of Proof: From Victims to Government of Political Violence

SHAME ! SHAME ! SHAME ! How unspeakably shameful and unspeakably infuriating that we -- our dignity, our present, our future, OUR NATION, our people -- should suffer the FLAGRANT ignorance and FLAGRANT stupidity of our government and judiciary! It is one thing for someone who doesn't know how to read and write to not know how to read and write; we have a different understanding and expectations of them - lack of resources, lack of opportunities; we do not hold them morally bankrupt. Many times, to the contrary, we admire their simplicity and honesty.

But for people - public officials, REPRESENTING US -- people, who hold themselves to be "educated" to play stupid and ignorant -- this would be laughable if not for the very real, serious spill-over consequences into public life and development of Cambodia.

The context has changed by the many misused billions of U.S. dollars pouring into Cambodia to give us a better facade, a better designer suit, but the bloody dirt and grime, the bloody paranoia and deceit, the bloody elevation of ignorance and anti-intellectualism of Khmer Rouge mentality continue to lead us backward into Cold War destruction. The Khmer Rouge leadership claimed ignorance or "I have no choice" for the killings; do current officials in the government, in the judiciary, in parliament, not use the same line of argument, "I have no choice"? I was forced to kill; I was forced to lie; I was forced to inform on my neighbor, etc.

Silence/inaction in the midst of wrongdoing is already considered morally bankrupt; how much more to be the hands to execute the unjust (even if lawful) order, to aid and abet?! What are the sorry excuses of the Svay Rieng Court to be either this incompetent or criminal (in knowingly convicting the villagers and opposition leader Sam Rainsy) or both? "I have no choice; if I don't do it, I will lose favor with the powers that be? I will lose my Lexus? I will lose my position?"

What the Khmer Rouge Tribunal is telling us is that no matter how difficult the choice, we are all held INDIVIDUALLY RESPONSIBLE for our choices! If we are to consider the degree of difficulty of the Svay Rieng Court to those of KR cadres, the degree is one of comfort and less of life and death.

SHAME! SHAME ! SHAME ! Unless we mature as individuals and as a people, expect more of this stupidity and ignorance and anti-intellectualism to be the norm. And weep. Weep for yourself, weep for our children. Weep for the death of Khmer dignity and Khmer nation.

The article below was first published in June 2008 in The Phnom Penh Post as part of the Voice of Justice columns.

SHIFTING BURDEN OF PROOF:
From Victims to Government of Political Violence

On June 2, the Cambodian Human Rights Action Committee (Chrac), Nicfec and Comfrel held a press conference on political violence during the pre-campaign period, and questions arose as to how we know that these cases of violence were related to politics. Do we have proof?

These are legitimate questions and the response requires us, first of all, to distinguish between what one knows and what one can prove, and related, to understand the term "burden of proof".

In law and in politics, as in life and in love, what we know can be different from what we can prove. The opposition commune chief was beaten unconscious: was he beaten for his political affiliation or for a personal vendetta or as a result of violence in the course of a random robbery? The victim, his family and neighbors believe (or know) the violence occurred because of his political stance, but how do they prove it? The government denies their charge or claim.

In current Cambodia, we see this scenario repeat itself over and over again, with only the names, location and context changing.

What is the "burden of proof?

In law and philosophy, the term "burden of proof" refers to the onus (duty, obligation) to establish (demonstrate, prove) a disputed charge or allegation for it to be accepted as true (or reasonable to believe). Simply put, the burden of proof is the responsibility of proving a fact in dispute.

Normally, the burden of proof rests on the person who asserts, not who denies. That is, the necessary of proof lies with he who complains. The principle that it should be this way is commonly known as the "presumption of innocence". If "he who asserts must prove" then the plaintiff has the burden in a civil case, and the prosecutor in a criminal case.

This allocation of burden is correct and as it should be.

Additionally, the less reasonable a statement or allegation seems, the more proof it requires.

Current burden on victims

Currently in Cambodia, when there is violence against opposition activists, the victims cry "politics!" and the government decry against it, claiming instead that it was random violence or personal vendetta. The victims carry the impossibly heavy burden of proving that it was politically motivated. It is impossible because the perpetrator hardly ever states his motivation; it is heavy because of the high threshold of non-existent visible proof, unlimited possibilities and motivations which could be and are posited, as well as a culture of fear and lack of investigative resources.

Cambodians, who read or hear of the repeated patterns of these incidents, intuitively know that these acts of violence are politically related, their knowledge framed and informed by their personal experience and acute understanding of their society, even if the victims cannot prove the case.

These cases provide a dissonance and disconnect between public knowledge and proof.

Hence, to maintain the burden of proving it was political on the victims is to invite and encourage further political violence and impunity of the perpetrators and powers-that-be. It is to play a pretend game of life when everyone knows otherwise.

Shifting burden to government

We need to shift the burden. We need to shift the responsibility of proof which is currently on the victims to the Government. We need to make it the Government’s duty to prove it was not political.

The exceptions to this general principle that "he who asserts must prove" can be had through a statute expressly placing the burden on the Government... "it shall be for the Government to prove..."

However, the shifting of burden through a statute must be limited (e.g., to the elections period) in order for it to be fair and reasonable.
Sample Statute
Six months prior to and three months after the July 27 national elections, any violence perpetrated on a known political activist (it does not matter which political party) will be considered a prima facie [automatically/ "on its face"] political case, and it shall he for the Government to prove that [the murder, the threat, the intimidation etc.] is not political. The Government shall compensate the victim or his family [US$100,000 for murder, etc.].

If the Government is serious about stemming political violence and would like to proactively erase the high suspicion and distrust of the public, and conversely build public confidence and communicate that life is sacred by giving token compensation, this Statute is very reasonable and necessary. However, if it would like the public to continue to be cynical, suspicious and fearful, then the Government should maintain the status quo and continue to parrot "personal vendetta; random violence" speech.

Other random matters

The arrest of opposition journalist Dam Sith is a deeply, deeply shameful, flagrant disrespect for the rule of law, due process and free expression, and adeeply, deeply shameful display of brute power that has no place at the table of civilized people and civilized nations in a globalized community of 2008. Has defamation not been de-criminalized? Moreover, what is the falsehood to be legally charged? In defamation, truth is a defense.

Generally speaking, we see that the ancient Greek, Anarchus, was very prophetic of Cambodia when he wrote: "Written laws are like the web of a spider, and will like a spider web only entangle and hold the poor and weak, while the rich and powerful will easily break through them." (I highly recommend US Ambassador Joseph Mussomeli's speech of March 20, 2008 from which this quote is taken.) Or a more modem version of this: "For my friends, whatever they want. For my enemies, the law."

Theary C. SENG, a member of the New York Bar Association, former director of Center for Social Development (March 2006—July 2009), founder and Board of the Center for Justice & Reconciliation (www.cjr-cambodia.org), founding adviser of the Association of Khmer Rouge Victims (www.akrvc.org), is currently writing her second book, under a grant, amidst her speaking engagements.

Unsettled peace in Cambodia

September 17, 2009
By Chak Sopheap
Guest Commentary
UPI Asia

Niigata, Japan — The world will soon once again celebrate the United Nations International Day of Peace, marked every year on Sept. 21. Yet the world is far from peace as civil wars, religious conflicts, growing insurgencies and the economic downturn bring more hardship than joy and smiles to people. Cambodia is no exception.

Cambodia claims to be a peaceful state, having recovered from a series of civil wars that included horrendous acts of genocide. However, there must be a clear consensus on how the country defines peace.

Peace should not be described as merely the absence of war or violence, which is “negative peace.” It should also include communal harmony, socioeconomic cooperation and equal political representation in government for all citizens. These, along with good governance, which respects the rights of the people, constitute the positive side of peace, or rather peace building.

Even when we say “absence of violence,” we must first examine what violence is. While war is direct visible violence, there is also a kind of “structural violence,” the result of bad and harmful state policies that have long-term negative effects on people, such as hunger and poverty, which harm and put peoples’ lives at risk.

If we look at the current trend in Cambodia, negative peace has been obtained but is jeopardizing positive peace. While parts of the economy are making considerable progress, more than 30 percent of the population is still living in extreme poverty. In addition, with corruption and continuous human rights violations – especially forced evictions and land grabbing under so-called development claims – there is little hope that Cambodia can move out of poverty.

In its current pursuit of development, the government of Cambodia has abused and violated people’s rights to housing and development. The judicial system is corrupt and the state is the main violator of the law. This state of affairs has rendered poor communities voiceless and powerless.

At the same time, freedom of expression – a fundamental right – has also been abused by the government, which applies various ill-defined laws with the help of the judiciary it controls as a political tool to silence critics. It is not surprising that the government recently filed many lawsuits against political activists, journalists and human rights defenders.

Systematic structural violence has not yet affected peace in Cambodia, but it will soon if the government does not undertake and implement reforms immediately. For example, there is fear that the ongoing land grabbing and evictions by the government could lead to a peasant revolution. This would then revive the cycle of bitter agrarian revolution that brought past political regimes, like Pol Pot’s Khmer Rouge, to power.

The government therefore must commit to not only maintaining negative peace, but also to building positive peace in order to attain social harmony.
--
(Chak Sopheap is a graduate student of peace studies at the International University of Japan. She runs a blog, www.sopheapfocus.com, in which she shares her impressions of both Japan and her homeland, Cambodia. She was previously advocacy officer of the Cambodian Center for Human Rights.)

The use and abuse of defamation and disinformation lawsuits dangerously undermine constitutional freedoms of opinion and expression: UN OHCHR

UNITED NATIONS
OFFICE OF THE HIGH COMMISSIONER
FOR HUMAN RIGHTS IN CAMBODIA
No. 10, Street 302, Sangkat Boeng Keng Kang I, Khan Chamcar Mon, Phnom Penh Cambodia
Tel: +(855) 23 987 671 / 987 672 / 993 590 / 993 591 or 216 342 Fax: +(855) 23 212 579 or 213 587
E-mail: cambodia@ohchr.org Website: http://cambodia.ohchr.org

“The use and abuse of defamation and disinformation lawsuits dangerously undermine constitutional freedoms of opinion and expression and democratic development”
says the UN human rights office

A briefing note on freedom of expression, defamation and disinformation

15 June 2009

Since April this year, not less than eight separate criminal defamation and disinformation complaints have been lodged with the Courts by some of Cambodia’s highest public authorities against Government critics. One of them was lodged, not by an allegedly aggrieved individual, but in a generic manner on behalf of “the Government”. These cases are currently under investigation by Phnom Penh Municipal Court Deputy Prosecutor, Mr. Sok Roeun. One of them was adjudicated on 8 June 2009 (see annex for details of these cases).

This recent surge in the use of criminal defamation and disinformation lawsuits filed mostly against politicians, journalists and other persons expressing their views in a peaceful manner on matters of public interest threatens to inhibit what should be a free debate and exchange of ideas and views on these matters. These actions undermine the constitutional freedom of opinion and expression which everyone in Cambodia is entitled to, and which is the cornerstone of the exercise of civil and political rights. The exercise of this right is a significant indicator of the level of protection of and respect for all other human rights in any society. No one should be afraid to express peacefully his or her views, provided this does not infringe on the rights of others. Stifling freedom of expression through the use or the threat of legal action, be it criminal or civil, especially in a context where the courts are vulnerable to executive influence, is a serious threat to democratic development which may undermine the efforts of the past 16 years to rebuild a tolerant and pluralistic environment in Cambodia. The experience in other countries shows that limiting freedom of expression, instead of addressing issues and criticism through discussion and a reasonable debate, not only provokes self-censorship but nurtures fear, frustration and anger, with the risk of leading to further conflict and violence.

At the same time, freedom of expression is not unlimited. It should be exercised in a peaceful manner, with respect towards others and their views, and not in order to advocate violence. International law is clear about the appropriate balance between the rights of free expression and debate on matters of public interest and the protection of individual reputation. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which is part of Cambodian law, states that any restriction on freedom of expression must be provided for by law, and must be necessary for respect of the rights and reputation of others or for the protection of national security or public order, or public health or morals.

Under international law, it is not sufficient that political debate on issues of public interest is expressed in strong terms, or is perceived as disrespectful of or contrary to Governmental policy, for limits on the exercise of freedom of expression to be legitimate. Open and dynamic debate on issues of public interest is part and parcel of the democratic process. Under the Constitution, the Government is responsible before its citizens for its policies and practices, and these must therefore remain open to public scrutiny, criticism and debate. Around the world, it is increasingly recognised that political debate on issues of public interest must be protected, and that civil rather than criminal law is sufficient to protect individual – rather than Governmental - reputations in the rare cases that these are genuinely infringed upon by political debate.

When investigating the complaints lodged before it, the Municipal Court is under a legal obligation to apply these international standards and to assess each case against them.

In respect of Members of Parliament, international law recognises the special role that they have in the democratic process and in forming public opinion and debate. The very purpose of parliamentary immunity is to enable Parliamentarians to discharge their duties as elected people’s representatives and law-makers without fear of retribution. A Parliament, as the name indicates, is a place in society where issues are discussed. The lifting or immunity, or a threat thereof, for no other valid reasons than to intimidate parliamentarians and stifle political or other debate shows disregard and contempt for open and democratic debate. It should be considered only in the case of the most serious offences.

Pursuing the current complaints may reverse the course of the still fragile democratic development process in Cambodia. The OHCHR recalls the international standards accepted by Cambodia and contemporary best practices with regard to defamation related disputes:

• The filing of criminal complaints in respect of public issues raised in the cases concerned is excessive and unjustified. If individuals disagree in public discussions they should first respond to the substance of the allegations and engage in a fair debate about them. If they feel aggrieved by words pronounced by others, they should resort to civil rather than criminal remedies, as the Cambodian law provides.
• It is important for the protection of the democratic space for public debate that public authorities, politicians as well as members of the public, who participate in these debates, tolerate dissenting views and do not regard them as personal attacks. There is nothing wrong in criticising public policies. This is part of a healthy democratic process and environment.
• It is inappropriate for complaints to be filed in the name of the Government. If individual officials feel aggrieved, the Courts are open to them as individuals. This practice reflects international jurisprudence on this issue and the interpretation of Article 19 of the ICCPR by the United Nations Human Rights Committee, the monitoring body of the ICCPR, which has recommended against the criminalisation of defamation of the Government.
• Any issues arising from journalistic publication of matters of public debate should be addressed as provided for under the Press Law.
• The lifting of Parliamentary immunity, or threat thereof, for intimidation purposes undermines its important value in enabling free discussion of public issues among people’s representatives and law-makers. This practice should cease in respect of defamation and disinformation lawsuits.
• As independent and impartial arbiters of cases before them, judges and prosecutors, as well as professional bodies such as the Bar Association, have a professional duty to treat all cases presented to them in the order they were filed, in an equal, fair and objective manner and apply the law without discrimination or prejudice. This is an essential principle of justice not only to be delivered, but also to be seen as being delivered by all parties and the wider public.
• In 2006, the Government took the important step to remove prison sentences as a sanction for criminal defamation. A further step in strengthening the legal framework for democratic debate would be to remove defamation and disinformation from the new Criminal Code currently under preparation, so that only civil courts may address these issues. This would constitute an unequivocal confirmation of the right of all Cambodians to freedom of expression in accordance with the law and a clear recognition of the value of free democratic debate on issues of public interest, while allowing for the reputations of individuals to be properly protected in appropriate cases through civil actions for damages.

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APPENDIX

Several of the most recent instances of defamation and disinformation complaints:

1. The case of Ms. Mu Sochua against Prime Minister Hun Sen and subsequent complaint by the Prime Minster against her and her lawyer Mr. Kong Sam Onn:

On 27 April 2009, SRP Parliamentarian Ms. Mu Sochua lodged a defamation complaint against the Prime Minister for a speech he made on 4 April 2009, while in Kampot province which is her constituency. In her complaint, Ms. Sochua claims that the Prime Minister defamed her by referring to a female parliamentarian from Kampot who had allegedly embraced a General and then later complained that the buttons of her shirt had come undone. She was allegedly also referred to as having “strong legs”, reportedly a derogatory term in Khmer. While the speech did not mention her by name, Ms. Sochua claimed that she was being referred to.

On 23 April 2009, Ms. Sochua, with her lawyer Mr. Kong Sam Onn held a press conference at her party’s Phnom Penh headquarters where she announced her intention to file a defamation lawsuit against the Prime Minister. Her lawyer reportedly outlined the evidence and the grounds he would use to support her complaint.

On 27 April, the Prime Minister’s lawyer, Mr. Ky Tech, lodged a defamation complaint against Mu Sochua as well as against her lawyer for defaming the Prime Minister by claiming that he had defamed her. In addition, Mr. Ky Tech filed another complaint against Mr. Kong Sam Onn with the Bar Association for allegedly violating the code of conduct of the Cambodian Bar. The Phnom Penh Municipal Court dismissed Ms. Mu Sochua’s complaint on 10 June. The Prime Minister’s case against Ms. Sochua and her lawyer is still actively being pursued with threats made to lift her parliamentary immunity. The Bar Association has also started to investigate alleged ethical misconduct by Mr. Kong Sam On.

2. Complaint of defamation and disinformation against Mr. Hang Chakra, editor of the Khmer Machas Srok newspaper:

On 21 May 2009, the Phnom Penh Municipal Court issued a summon for Mr. Hang Chakra, the editor-in-chief of the Khmer Machas Srok newspaper to appear in court on June 3 for questioning over a disinformation and incitement complaint lodged against him by the lawyer of the Deputy Prime Minister, Mr. Sok An. The complaint reportedly relates to several articles published on April 5 and 7 and 21 May in the newspaper, exposing possible corruption attributed to officials working with Mr. Sok An. (One article is titled “Hun Sen Has Cracked Down on Bad and Corrupt Officials Who Are Working Around Sok An”). The complaint reportedly claims that these articles could affect political stability because they were written about government leaders. According to Mr. Chakra, Deputy Prosecutor Sok Roeun questioned him about the sources of the information for his articles, information Chakra has refused to disclose. Article 2 of the 1995 Press Law allows journalists to protect the identity of their sources.

3. Complaint of disinformation and incitement against Mr. Moeun Sonn, President of the Khmer Civilisation Foundation:

On 2 June 2009, government lawyer Mr. Pol Chandara filed a disinformation and incitement lawsuit with the Phnom Penh Municipal Court against Mr. Moeun Sonn, the president of Khmer Civilization Foundation for allegedly publishing untrue information related to the installation of lights at Angkor Wat, contending that heat emitted from the light installation could damage the temple walls. The government lawyer allegedly accused Mr. Moeun Sonn of using such remarks to defame the Government and to incite persons to think negatively about the Government.

4. Complaint of defamation by Municipal Governor Mr. Kep Chuktema against Mr. Sam Rainsy:

The Governor of Phnom Penh, Mr. Kep Chuktema filed a complaint on 27 May in relation to a speech Mr. Sam Rainsy reportedly gave on 14 May, in which he allegedly claimed that Mr. Kep Chuktema was involved in vote-buying for the CPP prior to the 17 May council elections. To date, Mr. Rainsy has not been summoned to the court

5. Complaint of incitement and defamation against SRP Parliamentarian Mr. Ho Vann:

On 5 June, SRP Parliamentarian Mr. Ho Vann was summoned to the Municipal Court pursuant to a complaint of defamation and incitement lodged against him on 27 April by 22 senior RCAF military officers, who were allegedly offended by a comment Mr. Ho Vann had made related to post-graduate degrees conferred on the RCAF officials by a Vietnamese military institution in April.

6. SRP youth leader sentenced to US$ 1,250 for defamation.

On 6 June 2009, Mr. Soung Sophorn, a 22-year-old law student and local leader of the SRP youth wing was charged, arrested and convicted with defamation within three days and sentenced to pay a 5 million Riels fine for having spray-painted words critical of the Government on the wall of his private house. Mr. Soung Sophorn belongs to one of the hundreds families embattled with the Shukaku company and the Municipality to defend their rights to their lands and housing in the disputed Boeng Kak lake case where 4,000 families are under threat of eviction.