The Cambodia Development Cooperation Forum (CDCF) composed of donors and the Cambodian government will convene on 19-20 June to discuss the progress in the implementation of Cambodia’s development plan and its funding. This meeting is yet another occasion for all participants to honour their human rights obligations towards the Cambodian people under the Paris Peace Agreements of 1991 that ended the war in Cambodia. When they signed those accords, Cambodia and eighteen other countries “committed themselves to promote and encourage respect for and observance of human rights and fundamental freedoms in Cambodia”, and, as spelled out in the declaration on the reconstruction of Cambodia attached to the same accords, this respect for human rights would remain as an integral part of the reconstruction and development of Cambodia that was to follow. Some of these donors such as Japan, France, Australia, Canada, US, UK, India, are signatories to those accords.
Since 1991 progress in human rights has been achieved, but there are still a lot of violations and abuses. The Asian Human Rights Commission (AHRC) and other human rights organizations, local and international, especially, the UN Special Envoy for Human Rights, have been reporting them abundantly over the years. Donors should have been quite well aware of this parlous human rights situation in Cambodia. These violations and abuses include the ban on freedom of expression and assembly. The government sends armed police to brutally crackdown any unauthorised public demonstrations or protests. The government continues to control the radio and television. Journalists continue to face threats and intimidation or lawsuits. The government has arrested and jailed people for expressing their opinions, and has charged them with defamation, disinformation or incitement. The culture of impunity is further perpetuated when the government has not conducted any serious investigations, if at all, into murder cases in which powerful government officials are known to have been involved. Victims of such crimes are denied justice because of this impunity. Corruption is rife in all state institutions from top to bottom. Corruption creates injustices and violates the right to access to public services when this right is denied, or it is made difficult or costly to the public. The government has promised to enact an anti-corruption law but for over ten years now Cambodia has no such law yet.
The government has been ruling mostly by decrees and seldom resorts to due to process, and there is little transparency in its activities. This governance has created, among other things, a land grabbing problem when the powerful or the rich can force villagers to sell land to them at prices below the market prices, or simply illicitly secure title deeds on that land or government concession of it, and then get the government to issue eviction orders and have the armed police force execute these orders. Invariably the police are very brutal when they do so. They beat evictees, burn or demolish their homes and belongings. This land grabbing has affected thousands of families and some of these families have now become destitute or are forced to live in resettlement areas with no social infrastructure and far away from their jobs.
AHRC urges all donors who are participating in the meeting to have the courage to honour their obligations towards the Cambodian people, raise this issue of human rights violations and abuses with the Cambodian government at the meeting and request it take action to have remedies to those violations and abuses and prevent their repeat. The AHRC holds that the most effective remedy to end all human rights violations and abuses is the rule of law with an independent judiciary, which is absent in Cambodia. All donors are well aware that the Cambodian judiciary is under executive control as judges are mostly affiliated to the ruling CPP party, a former communist party whose discipline is still enforced by the idea that “you cannot get out of the party alive”. Heng Samrin, the honorary CPP president and president of the National Assembly, has confirmed this absence of judicial independence when he was reported in May as saying that “nobody, including judges, are without party affiliations.” He said: “It is hard to find independent [judges],” adding that the “important thing is that [judges] must work impartially, according to the law.” This lack of judicial independence is itself a violation of the right to be tried by an independent, competent and impartial court of law.
When talking with the Cambodian government, donors should prioritise this rule of law and judicial independence. In this regard they should get the Cambodian government to do the following:
1. Ensure that courts of law are independent, competent and impartial and are trusted by people. In this regard, there is a need to sever the judges’ party affiliation and end the executive control of the judiciary. There is also a need to secure judges’ tenures with the enactment of the laws on their statute and on the organisation of courts. Such laws have been at the drafting stage for some ten years. The government must allocate adequate resources to courts, which they are now lacking, so as to enable them to effectively carry out their functions.
2. Reorganise the Supreme Council of the Magistracy, which is responsible for judges’ nominations and discipline. This supreme judicial body must change its corporatist composition, which includes seven judges out of a total of nine members, and replace the majority of these judges with non-judges, to ensure that the body is more willing to take disciplinary action against judges. The SCM should run and control its own secretariat and must also be made easily accessible to the public and transparent in its functioning, which is currently not the case. It must further put in place a complaint procedure and complaint mechanisms to enforce the judicial ethics it has just introduced in its code. This code will be more effective if it is integrated in the law on the statute of judges and prosecutors.
3. Enact a law on the police force to give this force a legal base. This law should provide for the organization, function, powers and duties, discipline and control of the police as well as their recruitment, training and deployment, the relationship with the prosecution/judiciary in their functioning and also the administration for pay, transfers, leave, etc
This same law should also provide for an independent police complaint council and a code of ethics for the police. Like the SCM this council should put in place a complaint procedure and complaint mechanisms to enforce the police ethics and be easily accessible for the public.
4. Enforce property rights as protected under the country’s constitution in order to eradicate land grabbing. The constitution stipulates that legal private ownership shall be protected by law. The same constitution also fixes specific conditions for the confiscation of property for public interests, saying that the right to confiscate properties from any person may only be exercised in the public interest as provided for under law and shall require fair and just compensation in advance. The government must enact a law to determine that the land targeted for confiscation will be used for public interests. This law must also provide for an independent and impartial mechanism to award fair and just compensation to owners of affected properties.
5. Enforce the 2001 land law, which prohibits infringements on ownership and imposes penalties for such infringements. It must also ensure the proper functioning of the district, provincial and national commissions created by the same law to deal with land disputes. It needs to consult with people who are likely to be affected by any land concession for economic purposes, and ensure that these people are fairly and justly compensated. Furthermore, it needs to work out land concessions for social purposes and make land adequately available to the poor, for their housing and cultivation, before making any land concessions for other purposes.
In addition to dealing with the Cambodian government, donors should also get the Cambodia Bar Association to play an active part in the improvement of the administration of justice and the integrity of judicial officers. The Bar should challenge any law and procedure that are found to be harmful to human rights. It should take action against its members who have bribed judges to “win” cases for their clients, which is a practice by some lawyers at the moment.
