A Statement by the Asian Human Rights Commission on the occasion of the Human Rights Day
The State of Human Rights in Cambodia 2010 report: http://www.humanrights.asia/resources/hrreport/2010/AHRC-SPR-003-2010.pdf
Cambodia still remains an authoritarian state despite of it having a constitution based on liberal democracy and holding periodic elections. Liberal democracy was never a reality due to the nature of the Cambodian judicial system. The Cambodian “judicial system”, which was created with the advice of Vietnamese experts during 1980-90 period remain intact, despite numerous trainings of judges on liberal democratic principles. The overall system does not allow practice of such principles, the judiciary is expected to be under the complete control of the executive.
The actual model of administration of the country is not based on the constitution introduced in 1993, but it based on a model of administration created during the earlier administration 1980-1993, in which the executive had the complete control over the system. The executive exercised his control through the party. The system of administration controlled by the executive and assisted by the ruling party is what still exists today, as the real political stem of Cambodia. The constitution is only a decorative façade.
The thought control of the “judicial system” is essential to the very survival of the actual political system in operation. All political activity is controlled through “the judicial system.” All opposition party members who deviate from the unwritten rules of the system are punished through the court system. The development of opposition parties is thus controlled by the sanctions that are being imposed through the courts.
Therefore possibility of a fair trial does not exist within the system. Outcomes of trials are predetermined. Any judge that may try to deviate from this limitation on the power of courts will suffer the consequences. The “Judiciary” quite well understands this situation and therefore deviations have been few and far between them. Besides, deviators have paid for their transgressions.
Limitations imposed on the Supreme Council of Magistracy and Constitutional Council are not accidents but are of a political nature. These institutions are expected to be of subservient nature of the executive. The reforms of such institutions are not possible as long as the existing model of political administration remains in operation.
Most Western “reformers” have refused to acknowledge the actual nature of the political administration and often try to make the constitution work. Naturally, nothing comes out of such efforts except frustration.
Enactment of new laws do not make much of a difference to this system neither. Law is not an important ingredient of administration. The administration has its own operational rules. Misuse of the New Criminal Code for the purpose of imprisonment of the opponents of the government is warning for wanted attempts to reforms of the system by such means.
What is required for any reform is the understanding of the actual system, as it exists today and the weakness of that system. An international debate on the system based on an actual understanding of it, is more likely to produce results facing real challenges to the rule of law and democracy, than ad hoc activities introducing new laws and different kind of training.
The Cambodian people, who suffer under the system of tyranny, do understand its nature and the limitations. One can hope that they will become capable of articulating their tribulations and finding ways to overcome them.
Impunity
Impunity remains a major challenge to the rule of law in Cambodia. Cases that involve police, military and prison officials among others rarely make it to court and prosecutions are exceptional. The police often refuse to take the complainants’ statements in the first place and complainants are harassed, threatened or bribed to withdraw them. Evidence is withhold or destroyed by authorities and if investigations do take place, they are often arbitrarily conducted and in the favour of the officials. Countless cases of murder, torture or rape go unsolved while evidence is clearly established. The impunity the perpetrators enjoy has a tremendous impact on all aspects of a system claiming to be based on the rule of law.
While all state institutions are afflicted with the lack of separation of powers, most of them are accessible and can be influenced with political or economical power. The government control almost all features of the judicial system and both the government and the Ministry of Justice infringe upon the work of the Constitutional Council and the Supreme Council of the Magistracy, which are supposed to be independent monitoring bodies.
Due to the absence of the law on the statute of judges and prosecutors, the government has exercised its control in the appointment of judges and members of the Supreme Council of the Magistracy, which should be appointed by the Council itself. No age of retirement of judges and prosecutors has been fixed, which have led to cases of favoritism. Corruption is widespread within the judiciary and it is believed that judges and prosecutors bribe their way to their position or to remain in them.1
The major complaint everywhere is that of “Land Grabbing”. Having a title to a plot of land is normally the ultimate guarantee of some security in this poor country. However, having a title to land is of little use when the same land can be allotted to some company by a government authority, who does not even inform the original title holder when such allocations are made. It is only when the company begins the operation to redevelop the land that the original owners get to know that the land they rightfully own has been given away.
Naturally they protest and at that stage security forces enter the scene and harassment is the result. As the people literally have nowhere to go, they fight back. Then they are brought to courts on all kinds of charges and many are detained. There are thousands of reports of such happenings from around the country. In Phnom Penh, 133,000 people, which is more than 10% of its population, are believed to have been evicted since 1990.
The result of such land evictions is that those who are displaced are excluded from any benefits, and lose their source of income; they are exposed to poor health and the young people go uneducated. In a country, with so little opportunities, eviction from land implies a transformation, which ends in destitution. For many people any hope for stability and a future is lost. Naturally women, young people and the elderly suffer the most. Consequently, prostitution and other related problems are increasing in today’s Cambodia.
“The Cambodian courts continue to act on behalf of rich and powerful interests, ignoring the evidence, the Land Law and other relevant legislation, enforcing eviction where ownership remains undecided and imprisoning those who dare to protest”, states a report from the well known Cambodian League for the Promotion and Defense of Human Rights (LICAHDO). Many other organizations and most people within the civil society confirm this view.
Cambodian courts are not able to protect land titles. Their function is not the protection of the individual but the interests of those who are in power. The idea of the balancing of interests is an alien concept in Cambodia. The role of the authorities is to protect the state, not the people. 2
Torture
The people of Cambodia continue to face serious problems relating to guaranteed rights against torture. As far as legislation is concerned, Cambodia has been a party to all UN conventions relating to civil rights and rights against torture. Recently, it also ratified the optional protocol relating to prevention of torture, cruel, inhuman, degrading treatment and punishment. However, it is common knowledge in Cambodia that while all these documents are being signed, there are taken no action whatsoever to implement them and they continue to have little practical value for the people.
Cambodia’s judicary and rule of law system are wholly inadequate to deal with this problem. In the recent visit of the UN Special Rapporteur on the situation of human rights in Cambodia, Professor Surya Prasad Subedi, highlighted the inadequacies of the judicial system in Cambodia. Unfortunately, the only response he drew from the country’s prime minister was, “Don’t tell me it is raining when I am standing in the rain.” His comments were interpreted by the media to mean, ‘Don’t state the obvious.’ Clearly, the government shares the view that the country’s rule of law and judicial system are inadequate. However, there are no plans of any sort of the improvement of these systems.
As far as torture is concerned, Cambodia still does not have a proper definition of torture incorporated into its domestic legislation. The penal code recognizes torture as a crime, but it has not incorporated a clear definition of torture into its legal framework. It has been the recommendation of UN’s Committee against Torture (CAT) as well as local and international human rights organizations that the government should bring about legislation which incorporates a clear definition of torture. Without clear definitions, it is not possible for courts to properly implement the constitutional and penal code provisions relating to torture in Cambodia.
The problem of torture in Cambodia is similar to those in neighboring countries and is rooted in Cambodia’s policing system, which is seriously lagging in every way. Criminal investigations still use old methods and there has been no attempt to modernize the policing system of Cambodia. There have been no investments in the improvement of this system. The training of the police as well as the facilities available to the police are entirely inadequate for dealing with criminal investigations in a rational manner. The under-development of the policing system results in the constant use of coercion on people who are arrested by the police.
Harassment of political opponents and human rights activists
By the abuse of the criminal justice process political opponents of the government and human rights activists are arrested and subjected to baseless criminal prosecutions under misinformation charges. New penal laws are interpreted with authoritarian mentalities to achieve the very opposite of what the new laws are intended for.
The State of Human Rights in Cambodia 2010 report: http://www.humanrights.asia/resources/hrreport/2010/AHRC-SPR-003-2010.pdf
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Footnotes:
1 Human Rights in Cambodia: The Charade of Justice, a LICADHO Report, December 2007
2 An AHRC Statement- www.ahrchk.net/statements/mainfile.php/2010statements/2863/
