16 years ago today, the Cambodian warring factions representing their country and 17 concerned countries, including Cambodias neighbours, other Asian countries and western countries, gathered in Paris, France, to sign, in the presence of the Secretary-General of the United Nations, a set of agreements to end the war in Cambodia. All the 18 State signatories recognized, among other things, that Cambodias tragic recent history required special measures to assure the protection of human rights.
Among these measures were Cambodias adoption of pluralistic liberal democracy as its system of government, and its undertaking to ensure respect for, and observance of, human rights and fundamental freedoms. For their part, the other State signatories also committed themselves to promoting and encouraging such respect and observance, and the UN to monitor the situation of human rights in that war stricken country.
Following those accords, Cambodia has adhered to all international human rights norms and standards and incorporated them into its constitution. This constitution has established an independent judiciary for the protection of the rights and freedoms of all Cambodian citizens so that aggrieved individuals can have courts to adjudicate on and enforce their rights. On top of an independent judiciary, the same constitution has assigned the King of Cambodia to be the guarantor of both the independence of the judiciary and the rights and freedoms of Cambodian citizens.
The practice is still different from the commitments of 16 years ago, however. Independence has remained as elusive to the judiciary as ever. There is as yet no law on the organization of the judiciary which guarantees such independence. Nor is there any law to determine the status and independence of judges and prosecutors as provided for in the constitution.
The government has continued to undermine the independence and authority of the supreme judicial body called Supreme Council of the Magistracy (SCM) whose tasks are the appointment of judges and prosecutors and their discipline. It has, in the past, taken direct action to discipline judges and prosecutors.
In 2004 the prime minister introduced an iron fist policy and brought to justice some judges and prosecutors for alleged corruption. However, the charges against them were dropped due to lack of sufficient evidence. In 2007 the government took action to remove the president of the Court of Appeal and appoint her replacement. It bypassed the SCM thereby violating the countrys constitution altogether.
The government has made direct or indirect interventions with and/or put pressure on individual judges and prosecutors in cases of concern to them. In 1999, the prime minister ordered the re-arrest of a number of suspects and accused that the courts had released. Since then, such intervention and pressure from powerful people at the national and provincial levels has continued.
Judges and prosecutors have placed themselves under political control through their affiliation to the ruling party, the Cambodian Peoples Party, which they are either members of or being compelled and encouraged to join. They have subjected themselves to the discipline of this former communist party which is as strict today as it was before. It is said that 99 per cent of them are members of the ruling party. The chief justice of the Supreme Court is a member of both its permanent and its central committees, and the president of the military tribunal is a member of its central committee.
The government has also undermined public confidence in the courts as it rules mostly by decrees. It simply issues executive orders and gets law enforcement agents to enforce them without recourse to the due process of law. This practice is most prevalent in land disputes cases. At times the government has halted the execution of court orders with no reason other than (allegedly) the protection of the losing parties. Over recent years the government and the provincial authorities have forcibly evicted people from their houses or lands with simple executive orders. The most recent of such cases was the eviction this month (October) of 45 families in the seaport town of Sihanoukville on the Gulf of Thailand.
The government has not appreciated the role of the courts and has still allocated proportionally less significant resources (0.25 per cent of the public sector budget in 2002) to the judiciary as a whole. Though there is an increase in the salaries of judges and prosecutors over recent years, Cambodian courts remain ill equipped and some courts do not even have fax machines.
For his part, the King of Cambodia who is the chairman of the SCM, has not exercised his constitutional power to ensure the independence of the judiciary. Yet, in 2004, the previous King, when still on the throne, acknowledged that there is an indefinitely very small number of independent, neutral and impartial Khmers [Cambodian judges]. This former King was simply content to send complaints of human rights violations he had received to the government for consideration.
As a result of the lack of independence and low resources, the courts have not been able to fulfill their constitutional duty to protect the rights and freedoms of Cambodian citizens.
These shortcomings have been compounded by the lack of procedures and mechanisms whereby aggrieved individuals can get the courts to adjudicate and enforce their rights. These people have no recourse other than following the criminal procedure to file a complaint in a court or to the police. But this complaint cannot be acted upon if the offence is not provided by the criminal or other laws, and Cambodian law has not, as yet, recognized as punishable offences many violations of human rights, such as abuse of power, and violations of freedom of assembly, freedom of expression, freedom of the press, and economic, social and cultural rights.
Regrettably, even the code of criminal procedure, which was enacted this year, is not comprehensive enough to ensure the protection of the rights of the accused, of the victims and of witnesses. For instance, suspects have no right to legal council until 24 hours after their arrest. They cannot communicate with their families, or have medical examinations as a right while in police custody after their arrest. Furthermore, victims have no right to be consulted before the prosecution or the court make decisions. Victims and witnesses have no protection of their physical safety. During this month one victim of crime had to go into hiding after the court released her attacker. Another one, who has survived an assassination attempt and is recovering in Vietnam, is scared of returning to her homeland because she fears being killed by the perpetrator. Both victims fear for their physical safety.
For their part, not all the other State signatories to the Paris Peace Accords have honoured their commitment. The western signatories have honoured theirs to different degrees, but the Asian ones have remained basically silent to the situation of human rights and have done virtually nothing to promote them in Cambodia.
The UN has been active in monitoring and promoting the respect for, and observance of human rights, through the Office of the High Commissioner for Human Rights (OHCHR) located in Phnom Penh and through the UN Secretary-Generals Special Envoy for Human Rights in Cambodia. However, the Cambodian government has little appreciation of the work of both the OHCHR and the Special Envoy, and has paid virtually no attention to their recommendations for the improvement of the human rights situation. On the other hand, it has on many occasions threatened to close down the OHCHR, and in June of this year it announced a withdrawal of cooperation with the Special Envoy.
The Asian Human Rights Commission (AHRC) urges the Cambodian government to honour its obligations under the Paris Peace Accords and abide by Cambodias constitution. It should respect the independence and authority of the judiciary as stipulated in those accords and that constitution. It should provide the judiciary with adequate resources to discharge its constitutional duty to protect the rights and freedoms of Cambodian citizens. It should refrain from interfering in judicial affairs and should instead lend the courts all cooperation and support for the execution of their orders. It should adopt easy procedures and create simple mechanisms for victims of human rights violations, at the least cost to them, to have the courts adjudicate and enforce their rights.
The Cambodian government and courts should meet the rights of victims, namely, the right to be referred to adequate support services; to receive information about the progress of the case; to be present and give input in the decision-making; the right to counsel; to protection of physical safety and privacy; and to compensation, from both the offender and the State. They must ensure, perhaps above all else as stated above, the protection of the physical safety of victims of crime and also the witnesses.
The AHRC also urges the Cambodian government to lend full cooperation to the OHCHR and the UN Secretary-General Special Envoy, engage in dialogues with them and heed their recommendations for the improvement of judicial independence and the human rights situation in Cambodia.
For his part, the King of Cambodia should exercise his constitutional power and do more for the judicial independence and the protection of human rights and order all judges and prosecutors to severe all affiliation to any political party.
The AHRC further urges all other State signatories to the Paris Peace Accords to honour their obligations under those accords, and to work with the Cambodian government and judiciary, the UN and international agencies to ensure judicial independence and respect for, and observance of, human rights in Cambodia.
