Friday, March 31, 2006

Rule of law an elusive concept in Cambodia

In 1993, the United Nations Transitional Authority in Cambodia (UNTAC) reported that Cambodia’s institutions were “geared towards rigid political control by an authoritarian State backed by active military force and unwilling to accommodate alternative sources of authority.”

More than ten years later, this year’s report of the Secretary General’s Special Representative for human rights in Cambodia, portrays a government still unwilling to relax political control to meet its international human rights obligations.

The report describes “a deteriorating environment for democratic participation and practice. The frequent use of lawsuits brought by the Government through the courts to counter dissent and opposition has made it increasingly difficult for opposition-party politicians, trade unions, journalists, civil society and human rights organizations to express their views or to function freely.”

The international community has spent somewhere between US$5-7 billion in Cambodia in the past decade: international donor funding still contributes about 50 percent of its annual budget. There are signs that these billions of donor dollars, together with institutional reform and technical assistance, are slowly reviving Cambodia’s fortunes in the economic arena. However, Cambodia is still serially failing to implement reforms necessary to establish an effective rule of law.

Consultative Group

In spite of recent negative reports on the state of human rights and democracy in Cambodia, the Consultative Group on Cambodia (a group of international donors under the auspices of the World Bank) reportedly pledged $601 million of aid to Cambodia for this year, at its annual meeting on 2-3 March. This represents an increase of $100 million on last year.

Prior to the Consultative Group (CG) meeting, the European Parliament among others called for aid to be conditional upon an improvement in Cambodia’s human rights record. At the time of writing it is unclear what, if any, conditions have been attached.

At the CG meeting, the World Bank reported some positive economic signs. It also diplomatically applauded Prime Minister Hun Sen for “an improvement in the broader political and social climate”, in particular for his recent reconciliation with opposition leader Sam Rainsy, who had been charged with criminal defamation whilst in self-imposed exile. However, critics say that rather than signalling any real improvement in governance, Hun Sen is just rather adept at doing just enough to win donor support.

Whether this is in fact the case, recent events certainly do show that the Royal Government of Cambodia (RGC), indeed, Hun Sen himself, still uses the law and the judiciary to intimidate opponents and to maintain political control.

‘Disturbing trend’

On 31 December 2005, Kem Sokha, a prominent Cambodian human rights activist and director of the NGO Cambodian Center for Human Rights (CCHR), was arrested and charged with criminal defamation in relation to the display of a banner at a rally on International Human Rights Day. The banner was printed with the words “Protect my vote, protect my life.” The public were then invited to write their comments on the banner, which led to the addition of words referring to Hun Sen as a “communist” and a “traitor who has sold away [Cambodian] land to Vietnam.” CCHR removed the banner at the request of the police. However, three weeks later Kem and two others were arrested on charges of criminal defamation, bringing to ten the number of opposition activists arrested on charges of defamation during 2005 and early 2006.

Inevitably, international criticism followed, including from UN High Commissioner for Human Rights Louise Arbour, who described the arrests as a “disturbing trend” that threatened to undo ten years’ progress towards creating an “open and just society based on the rule of law.”

Within a matter of days, on 17 January 2006, the individuals were released on bail, after Hun Sen sent a letter to the court requesting the releases. The releases also coincided with a meeting between Hun Sen and the United States Assistant Secretary of State, Christopher Hill. Om Yentien, the head of the Cambodian human rights committee, said: “This is a present for Mr. Christopher Hill on the day of the inauguration of the new U.S. embassy”. Shortly after, on 5 February, Sam Rainsy and a member of his party, Cheam Channy, also received royal pardons for politically motivated convictions.

Executive interference

The arrests and later releases appear to have been sanctioned by Hun Sen. But interference with legal due process did not end there.

Immediately after the releases, Hun Sen insisted that the cases would not be dropped. Yet, on 24 January 2004, he backtracked saying he would instruct his lawyers to seek to drop the defamation suits, having spoken to and received letters of apology from those involved.

Then on 30 January 2006, he said that the court had confirmed the charges could not be withdrawn as the court process – which he had activated - was underway. He was reported as proposing that the lawsuits would be deferred instead; Cambodian law would allow for deferral up to three years. He therefore added that the individuals were not yet out of “trouble”: “if you are rude, the court will summon you, so there will be anoth­er problem.”

It is this kind of executive interference and intimidation that is endemic in Cambodia and leads the Special Representative to conclude that there is “a pattern to the current enforcement of the law in Cambodia which suggests that the law is abused for political purposes”.

Dying for land rights

One of the most pressing human rights issue in Cambodia is the issue of land rights and land grabbing, which in many cases is a side effect of the growing economy. A year ago in Kbal Spear, a village near Cambodia’s northwestern border with Thailand, police and soldiers removed 218 families by force and proceeded to destroy their houses with bulldozers. The land was grabbed to meet the demand of casinos that have grown on the border to cater to tourists. Land grabs similar to those experienced in Kbal Spear are being repeated in rural areas all over the country, where more than 80 per cent of Cambodia’s 13 million people live.

This problem like many others stems from the days of the Khmer Rouge, when property ownership was banned and land records destroyed. The RGC has made efforts to deal with this problem. A 2001 law was enacted to allow individuals to register a land interest based on five years’ residence, but the majority of those concerned are unaware of how to assert their rights and, even if they were, they face an ineffective and corrupt legal system. Hun Sen has publicly threatened public officials complicit in land grabs. Such statements are welcome, but Cambodians are waiting for rhetoric to be replaced by sustained and systematic reform of the legal justice system so that they can exercise their rights in practice.

Concrete steps

A resolution on Cambodia adopted by the UN Commission on Human Rights in 2005 expressed concern at continuing human rights violations especially relating to the rule of law, including the judiciary and violence against political and civil activists, impunity and corruption. The resolution urged the RGC to “continue to strengthen its efforts to establish the rule of law”. Similar sentiments have been expressed by members of the CG. Yet there has been no progress worth noting.

The Special Representative’s report highlights a number of key areas where the RGC can take immediate and concrete steps.

First, the RGC should repeal those provisions of the UNTAC law that permit the use of criminal defamation charges.

Second, the RGC should submit “the eight key laws” to the National Assembly, which at the 2004 CG meeting it agreed to do so before the end of 2005; the Special Representative reports that “little progress has been made” in site of “very considerable external technical and financial assistance for this task”.

Third, the RGC should strengthen the capacity and integrity of the Constitutional Council and the Supreme Council of Magistracy, as the two institutions most central to upholding and implementing the Constitution.”

Fourth, the RGC should give high priority to adopting the Law on the Status of Judges and Prosecutors, and to other associated technical improvements. A corollary of this should be continued support for the education of the judiciary and support for the Bar Association’s Centre for Training Lawyers.

Fifthly, a constructive dialogue is required between relevant RGC actors, its donor partners and local NGOs to seek to overcome the “pervasive practice of impunity” for the political and economic elite.

Sixthly, the RGC should promptly implement the Land Law and ensure “fair and just procedures to resolve disputes over land in accordance with domestic and international law.”

The continued scrutiny of the Special Representative and the close supervision of the international community remain crucial. The 62nd session of the Commission on Human Rights should build on last year’s resolution and endorse the recommendations in the report of the Special Representative.

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