Report of the Special Representative of the Secretary-General for human rights in Cambodia, Yash Ghai

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Excerpt from Report of the Special Representative of the Secretary-General for human rights in Cambodia, Yash Ghai

CONCLUSIONS AND RECOMMENDATIONS

99. Year after year, the Special Representative’s predecessors and others have addressed the problems of the legal and judicial system in Cambodia and made numerous recommendations, to no avail. The Government has no incentives for reform, as the international community continues to make large financial contributions regardless of widespread violations of human rights.

100. A distinguished Cambodian legal scholar recently commented that “the Government is the least serious about the legal and judicial programme”. The World Bank shelved a project because of “a lack of senior-level commitment to the implementation of a concerted legal and judicial reform agenda within the Executive and Judicial branches of the Government”. Another donor has said that numerous plans and councils on good governance are “little more than a studied attempt to tell donors what they want to hear”.

Recommendations to the Government

101. The Government has primary responsibility for the rule of law. The Special Representative would stress the following recommendations, many of which were made previously:

• The Government must respect the independence of all prosecutors and judges, including those (and defenders and administrative staff) within ECCC.
• The Government must devote more resources to the justice sector. Efforts to train lawyers and to recruit prosecutors and judges should continue and the aim should be for everyone to be within easy reach of a court and for delays in proceedings to be minimized.
• The Government should appoint a committee drawn from Government, the BAKC, human rights NGOs and local and foreign experts, to advise on the organization of legal aid. Its recommendations should be implemented speedily.
• The Government must promote respect for the rule of law within the State and society. It must set the example, as guardian of the Constitution and the law. Laws must be implemented fairly and fully and effective remedies for the violation of rights ensured, if people are to trust the notion of rule of law.
• The Government must urgently enact laws on demonstrations and anti-corruption, ensuring that they comply with the Constitution and human rights standards.
• The Government must protect the rights of indigenous persons and others who, due to illiteracy, customary practices and expectations, communal forms of organizations etc., are not familiar with the law or its procedures, the rules for making of economic transactions or with the market economy. Steps must be taken to ensure that State authorities, including communes, are no longer involved in transactions of dubious morality or law that undermine the rights of these communities and individuals.
• The Government must do all it can to stop forced evictions. It must never be complicit in unlawful evictions. Internationally accepted guidelines must be observed, including the principles that nobody should be made homeless as a result of development-based evictions, the full and informed consent of those targeted for eviction. Evictions should be carried out only in exceptional circumstances, and solely for the purpose of promoting the general welfare in a democratic society. The use of force should be prohibited. No one should be imprisoned in relation to protecting their rights to land and housing and anyone detained in this context should be released. A moratorium on forced evictions should be declared, to allow the determination of the legality of land claims to be made in an objective and fair manner.
• The Government must establish an independent authority to receive complaints about maladministration by the State (including institutions of justice). A Human Rights Commission fully established on the Paris Principles could be given this task.
• The Government must respect the duty and right of civil society to promote and protect human rights and observe United Nations resolutions on the rights of human rights defenders. No restrictions should be placed on reasonable activities of local communities and non-governmental associations.
• The Government must deal fairly with specific cases brought to its attention in recent reports of the Special Representatives and human rights organizations, including the circumstances in which the Venerable Tim Sakhorn disappeared. These steps should include justice for the alleged killers of union leader Chea Vichea and bringing to justice his real killers.

Recommendations to civil society actors

102. The Special Representative stresses the important contribution of civil society (including non-governmental organizations, lawyers, universities, think tanks and other educational and research institutions) to the common effort to establish the rule of the law. He encourages them to pursue their efforts, with determination, patience and courage, in a spirit of openness, dialogue and cooperation with the government authorities. They should continue to provide people with information about human rights, institutions and remedies, and with a voice when the administration, lawmakers and the judiciary do not listen. Discussion with the people about the Special Representative’s reports and feedback should be encouraged.

103. Educational institutions and NGOs should engage the public, through seminars, media and publications, on the procedures and practices as well as the rulings and judgements of ECCC, to create awareness of the meaning and importance of the rule of law.

Recommendations to the international community,
including United Nations institutions

104. To be seriously considered and implemented by the Government, the recommendations of the successive Special Representatives need to be endorsed and supported by foreign Governments and international agencies.

• The international community should set up or facilitate the setting up of an independent expert commission to review the working of the legal and judicial system, to make recommendations, and to report annually to the international community and the Royal Government of Cambodia, one month ahead of the consultations between the Government and the donors and lenders. The commission should develop effective and realistic criteria to assess progress, paying particular attention to the enforcement of the law and the independence of the prosecution and judges. The report should form the basis of consultations.
• Foreign Governments or agencies providing assistance in drafting laws must ensure that the law they are proposing is consistent with human rights. This raises no difficulties in respect of Cambodia’s sovereignty. This is also an international obligation of each and every Member State of the United Nations, under the Charter and under the treaties they have ratified.
• Foreign embassies, collectively or bilaterally, should engage the Government in dialogues on human rights and urge the Government to stop the most egregious violations. They should emphasize that respect for human rights is an essential basis of the partnership between them and the Cambodian State and people, and for the pursuance of a development process that places human beings and environment at its heart, rather than unlimited profit and greed, at its heart.
• Since the Constitutional Council has stated that human rights treaties are binding, it is necessary that the decisions of the treaty bodies and of international and foreign courts and tribunals should be taken into account when applying the law. This approach would reinforce the impact that ECCC is expected to have on improvements in the Cambodian legal and judicial system. OHCHR should translate and disseminate major interpretations and conclusions of the treaty bodies.

Note: The chief monk of Phnom Denh pagoda in Takeo Province and an ethnic Khmer from Southern Viet Nam was defrocked on the order of the Chief Patriarch on grounds that his activities in providing shelter to monks from the Khmer Krom minority in Viet Nam fleeing alleged religious persecution had undermined good relations between Cambodia and Viet Nam. He was then driven away by unidentified persons and his whereabouts were unknown until August when he appeared in custody in Viet Nam.

Cambodia's gov't has no reason to reform "widespread violations of human rights," as the rule of law and rights of citizens are neglected: Yash Ghai

UN Envoy Reports 'No Incentive' for Rights

By VOA Khmer, Reporters
Original report from Phnom Penh
18 March 2008

Cambodia's government has no reason to reform "widespread violations of human rights," as the rule of law and rights of citizens are neglected, the UN special envoy for human rights has reported.

Yash Ghai, the UN secretary-general's rights envoy for Cambodia, is expected to address the 7th session of the UN Human Rights Council Wednesday, and to include findings of a report now available online.

"The government has no incentives for reform, as the international community continues to make large financial contributions regardless of widespread violations of human rights," Ghai wrote in his report to the Rights Council.

Repeated attempts to reach government spokesmen at the ministries of Information and Foreign Affairs were unsuccessful Tuesday, but officials have steadily denounced Ghai's rights reports. The government refused to meet with Ghai on a December visit, and Prime Minister Hun Sen has called for his ouster.

Ahead of Ghai's expected address, the Cambodian Ministry of Foreign Affairs issued a restriction on visas issued to Ghai through foreign embassies. In a letter obtained by VOA Khmer, the Ministry of Foreign Affairs ordered that visas for Ghai must be approved directly through the ministry.

Ghai's report is critical of the erosion of the rule of law and the constitution, and cautions against government involvement in land disputes, among other areas of concern.

"Laws, institutions [and] procedures critical to the rule of law are very little respected in Cambodia - especially by the State," Ghai reported.

The lack of respect for such laws meant many of the provisions in the constitution were negated, he wrote.

"Numerous reports by the Special Representatives and national and international organizations have highlighted serious consequences of this," he wrote. "For the most part, the Government has made no serious attempt to deny, much less refute, these findings or to take serious action to address these issues."

Ghai visited Cambodia in December, meeting with non-government agencies and residents who had been removed from their land. On that visit, he said land disputes were a source of destabilization for Cambodia.

Ghai recommended in his Rights Council report that the government "do all it can to stop forced evictions" and "never be complicit in unlawful evictions."

Residents should never be made homeless as a result of development, he wrote, and evictions should only be made in "exceptional circumstances, and solely for the purpose of promoting the general welfare in a democratic society."

Ghai shunned the use of force and imprisonment in cases related to land disputes, especially for those "protecting their rights to land and housing," and he called for the release of anyone who is currently jailed under such conditions.

"A moratorium on forced evictions should be declared, to allow the determination of the legality of land claims to be made in an objective and fair manner."

Ghai recommended the international community set up or help set up an "independent expert commission" to review the legal and judicial system and report annually to the donor community.

Ghai cited a report by the rights group Licadho, claiming the "justice system has failed."

"Despite the Untac intervention and 15 years of aid to legal and judicial reform, in 2007," the report, "The Charade of Justice," says, "the primary functions of the courts continue to be to prosecute political opponents and other critics of the government; to perpetuate impunity for State actors and their associates; [and] to promote the economic interests of the rich and powerful.”

For Yash Ghai's full Human Rights Council report, click here.