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.

NGOs fear political violence ahead of election

Tuesday, 03 June 2008
Ly Menghour
The Mekong Times

A group of some 40 civil society organizations yesterday expressed deep concern over the increase in violence against political party members in Cambodia in the first part of this year. The organizations say this political violence is threatening Cambodian citizens’ and politicians’ freedom to take part in politics, a right they say is enshrined in the constitution.

The civil society group – including the Neutral and Impartial Committee for Free Elections in Cambodia (NICFEC), Committee for Free and Fair Elections in Cambodia (COMFREL), and coalition the Cambodian Human Rights Action Committee (CHRAC) – said the court system and some government institutions are used as political tools to propagate political violence and threats.

The group said that the rights of the individual are often not respected, with party defectors often filing complaints against their former parties over violence and threats. They warned such a situation could cause a political crisis for the Jul 27 national election.

“Cases of murder, threat, intimidation and political persecution are occurring, especially in far flung areas, while Cambodia is preparing for the upcoming national election,” Thun Saray, president of local rights group Adhoc, said at a press conference yesterday.

According to the observations of the NGO group, detailed in a report covering January to April of this year, there have been five assassinations of political party members, 21 cases of persecution and intimidation of party members and 15 cases of removing political party banners.

“Civil society organizations believe that the political situation in Cambodia is very bleak if political violence is still occurring in the period leading up to the national elections. This will affect the result of the national election which should be free, just and fair in compliance with the demands of the Cambodian people,” Thun Saray added.

Civil society organizations also noted that most perpetrators have yet to be arrested, let alone prosecuted. No robust legal measures have been instituted to prevent such abuses, they claimed.

“The Cambodian legal system is like a spider’s web which functions to ensnare the vulnerable and victims of crime, and which frightens voters,” Center for Social Development President Theary Seng said about the Kingdom’s court system.

Koul Panha, director of COMFREL, said the murder and intimidation chiefly happens to members of opposition parties, such as the Sam Rainsy Party, Norodom Ranariddh Party and Human Rights Party.

“As well as [what is occurring now], murder, violence and intimidation took place against party members before the 2003 national elections. These cases still remain under investigation and have not been solved,” he said.

According to the group, the five months running up to the 2003 elections saw eight assassinations of political party members and 43 cases of violence and intimidation. However, in the first five-month period of this year, there have already been five party member assassinations and 21 cases of violence and intimidation. The group claimed these figures show the situation this year is worse than in 2003.

Hang Puthea, NICFEC director, noted that, although the campaign period defined by the National Election Committee (NEC) – 26 June 26- July 25 July – has not commenced yet, political parties have already commenced campaigning.

Tep Nytha, secretary general of the NEC, rejected the civil societies group’s appraisal, claiming that the situation before this year’s national election is better than that of any of the previous elections.

“[Murder] is something that happens in simple societies,” he said. “The research has not been clearly conducted, but some political parties and civil society groups have been drawn into [making these conclusions] on political issues. Also, civil society groups don’t believe the research and conclusion of the experts. On the contrary, civil society organizations make conclusions by linking the [murders and violence] to political issues, which ruins the political environment.”

Tep Nytha claimed political violence, threats and murders have declined in 2008 compared to the 1993 and 2003 general elections and the 2007 commune elections. He said the NEC has been working with the government since 2007 to ensure security during the election.

However, Eng Chhay Eang, secretary general of Sam Rainsy Party (SRP), agreed with the civil society group’s statement. “If the intimidation and murders of political party members continue, the election will not proceed freely and justly,” he warned. “During the period before the election, the SRP has suffered from intimidation and the ‘buying of hearts’ [by other parties]. This concerns the SRP for the election.”

HRW: Cambodia is fraught with political violence

Report Says Democracies Enable Despots

By WILLIAM C. MANN

WASHINGTON (AP) — Authoritarian rulers are violating human rights around the world and getting away with it largely because the U.S., European and other established democracies accept their claims that holding elections makes them democratic, Human Rights Watch said in its annual report Thursday.

By failing to demand that offenders honor their citizens' civil and political rights and other requirements of true democracy, Western democracies risk undermining human rights everywhere, the international rights watchdog said.

Still, Kenneth Roth, Human Rights Watch's executive director, wrote in a segment of the report called "Despots Masquerading as Democrats": "It is a sign of hope that even dictators have come to believe that the route to legitimacy runs by way of democratic credentials."

Among countries named as major violators of their democratic credentials in 2007 were Kenya, Pakistan, Bahrain, Jordan, Nigeria, Russia and Thailand. The report covered the year through November. In December, Thailand's military government allowed elections and was voted out of power by a large majority to end 16 months of rule by the junta.

The annual report is the 18th compiled by Human Rights Watch. It summarizes human rights shortcomings in more than 75 countries.

Among other countries listed as abusers were Chad, Colombia, Congo, Ethiopia, Eritrea, Libya, Iran, North Korea, Saudi Arabia and Vietnam. It spoke of abuses by the United States, France and Britain, along with Pakistan, in the name of a "war on terror."

German Chancellor Angela Merkel, French President Nicolas Sarkozy and other European leaders were criticized for their reluctance to allow Turkey to join the European Union, despite its improved human rights record.

The report said the EU "lost leverage itself and diminished the clout of those in Turkey who have cited the prospect of EU membership as a reason for reform."

The report's emphasis, however, was the false democracies and the countries that enable them.

"It's now too easy for autocrats to get away with mounting a sham democracy," Roth said in a statement. "That's because too many Western governments insist on elections and leave it at that."

Ignored are "the key human rights issues that make democracy function: a free press, peaceful assembly and a functioning civil society that can really challenge power," he said.

The report said elections were manipulated in a number of ways, including:

• Fraud: Chad, Jordan, Kazakhstan, Nigeria, Uzbekistan.
• Control of electoral machinery: Azerbaijan, Bahrain, Malaysia, Thailand, Zimbabwe.
• Interfering with opposition candidates: Belarus, Cuba, Egypt, Iran, Israel in the occupied Palestinian territories, Libya, Turkmenistan, Uganda.
• Political violence: Cambodia, Congo, Ethiopia, Lebanon.
• Stifling the media and civil society: Russia, Tunisia.
• Undermining the law: China, Pakistan.

Both domestic and international law forbid most of these tactics, Human Rights Watch said.

In the face of this, Human Rights Watch said, "The United States and the European Union should ... demand they uphold rights guaranteed by international law, including a free media, freedom of assembly and a secret ballot."

"It seems Washington and European governments will accept even the most dubious election so long as the 'victor' is a strategic or commercial ally," Roth said.

State Department spokesman Sean McCormack said Wednesday he had not seen the report and could not comment on it. He said, however, "In terms of the United States and this administration speaking up in defense of, and advocating for, and putting its effort behind its rhetoric, I don't think there's any question about where we stand in terms of promotion of democracy."

The report said some of the Western countries, including the United States, have made it difficult to demand that offending governments honor human rights by committing abuses themselves in campaigning against terror.

Also, "they will devalue the currency of democracy" if they allow the need for resources, trade and security to make despotism acceptable, and the despots will have "a powerful tool for deflecting pressure to uphold human rights."

"It is time to stop selling democracy on the cheap."

CPP Councilwoman Accused of Beating SRP Activist

The opposition said Friday one of its supporters in Battambang, like these, pictured ahead of the 2003 national elections, was beaten by a ruling party council member.

Chiep Mony, VOA Khmer
Orginal report from Phnom Penh
14 September 2007

Officials from the Sam Rainsy Party in Battambang province plan to file charges in provincial court Saturday accusing a ruling party councilwoman of smashing an opposition supporter's head against the handle of a village well pump.

The charges say the assailant, Vun Savorn, was angered by the participation of the victim, Seoung Sung, over her participation in a road project and growing popularity in the area.

Seoung Sung has already written a letter describing the attack that has been issued to human rights organizations, said Dim Saroeun, the opposition party's Battambang legal representative.

The attack was politically motivated and full of "anger," he said, because Seoung Sung's popularity in the region was on the rise.

When a Korean-funded road project was completed, he said, Vun Savorn was incensed at Seoung Sung's participation.

Vun Savorn could not be reached for comment Friday.

"The conflict is a grudge," Seoung Sung told VOA Khmer. "I joined the [opposition] party and [Vun Savorn] insinuated that I support a miserable party. When I succeeded in this Korean road project, she was angry."

Vun Savorn claimed she had been a part of the project but was not being given credit for her efforts, Seoung Sung said.

Before she beat her head against the well pump handle, Vun Savorn said, "She wants my position," Seoung Sung said. "She said I wanted to show off for the gain of my party."