Cambodian Prime Minister Hun Sen has recently secured a pardon for opposition leader Sam Rainsy and his colleague Cheam Channy, who were respectively given a jail sentence of 18 months for alleged defamation and seven years for allegedly organising an illegal army. He has promised to restore their parliamentary immunity. He has also withdrawn his defamation lawsuits against the human rights activists that he has pursued over the last six months.
These are welcome developments that should be seen as a positive outcome due to the continued and intense pressure on Prime-Minister Hun Sen following his repressive measures against these government critics.
They should not lead anyone to believe, however, that democracy, human rights and the rule of law in Cambodia are thus restored and assured; for in the enfolding drama in Cambodia of accusations by the opposition, defamation suits, convictions, imprisonment and now reconciliation between Prime-Minister Hun Sen and the countrys major opposition party, Prime-Minister Hun Sen has imperceptibly consolidated his power and repression. He has now subdued the opposition party as its leader, Sam Rainsy, and Cheam Channy have admitted their guilt for offences they had claimed all along they had not committed and they have undertaken to discontinue their criticism of Hun Sen in exchange for his clemency. Moreover, these activists continue to face trial whenever Prime-Minister Hun Sen feels their criticisms are arrogant to him in the future. In addition, Hun Sen has not withdrawn his defamation suit against the retired kings councillor, Dr. Say Bory, as the latter has not offered any apology to him.
Hun Sen has already created a psychosis of intense fear in the Cambodian people from top to bottom with his punishment of these critics of his rule. His clemency cannot reduce, let alone eliminate, these fears when the existing laws, judiciary and other legal institutions inherited from the communist era are so defective that he can make use of them at any time against his critics.
The Asian Human Rights Commission (AHRC) holds that this psychosis of intense fear continues to remain and that the Cambodian people cannot enjoy their rights and freedoms until, and unless, these deeply serious defections are corrected.
The AHRC urges the United Nations, the Office of the United Nations High Commissioner for Human Rights, the United Nations Development Programme, the World Bank, the International Monetary Fund, the Asian Development Bank, the European Union and Cambodias donor countries to make a serious effort to effectuate a speedy and drastic reform of the legal and judicial system and police of Cambodia. The AHRC also urges all signatories to the Paris Peace Accords to discharge their commitment to ensure respect for and observance of human rights, democracy and the rule of law in Cambodia by vigorously lending their cooperation to push for this reform.
As in the case of the pardon and withdrawal of lawsuits, reform in Cambodia cannot come about without concerted action and pressure from all international stakeholders.
The key points of the reform should include, but not be limited to, the following:
1. Cambodia should become a party to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), thus creating the possibility for actual implementation of human rights.
2. The Cambodian Parliament should adopt as quickly as possible a criminal code, a civil code, a code of criminal procedure, a code of civil procedure, a law on the statutes of prosecutors and judges and a law on the administration of justice. These laws should incorporate the points recommended below.
3. Freedom of expression:
a. Defamation should be decriminalised and civil liability for defamation should be of such amount as not to ruin or bankrupt defendants;
b. The government should respect a free press and abandon its control over the electronic media;
c. The ban on demonstrations and other forms of assembly should be abolished.
4. The legal and judicial system should be depoliticised.
5. The police, prosecution office and courts should first give priority to human rights, including the presumption of innocence, the right to challenge the charge and the right to remain silent, when dealing with suspects and defendants.
6. Bail should be allowed in all misdemeanour cases as a matter of right.
7. Detention centres should be completely separated from prisons, and detainees should be able to enjoy all of their rights.
8. The independence and impartiality of police investigators, prosecutors and judges should be respected by all:
a. Politicians, including the prime minister, should not interfere in judicial matters;
b. The government and Parliament should issue and order all their respective members not to interfere in judicial matters, have contact or be seen to have contact with prosecutors and judges over cases these judicial officers are handling;
c. Prosecutors and judges should not be members of any political party;
d. The supreme judicial body, the Supreme Council of the Magistracy, should be freely open and easily accessible for members of the public to make complaints against prosecutors or judges.
9. Investigators, especially investigating judges, should be given adequate resources and training to do their job properly.
10. The Cambodian Bar Association and its members should uphold their independence and increase their professionalism.
11. Lawyers should discharge their duties, not only to their clients, but also to the administration of justice, and they should not hesitate to request changes to the law if it does not protect human rights or ensure justice.
12. Courts should give their cooperation and ample time to lawyers to prepare their defence.
13. The government should provide adequate legal aid to indigent litigants.
14. The government should provide monetary assistance and adequate protection to witnesses so that they can safely come to the courts to testify without fear.
