September 24 is Constitution Day in Cambodia; a public holiday called to celebrate the anniversary of promulgation of the countrys new constitution on the same day in 1993. This constitution was adopted by a constitutional assembly elected under the auspices of the United Nations, which administered the country in 1992 and 1993 pursuant to the Paris Peace Agreements of 1991 that put an end to the war in that country.
According to those international agreements and its new constitution, Cambodia is a democratic country governed by the rule of law, and has adhered to international human rights norms and standards. Yet 16 years after the signing of those agreements and 14 years after the promulgation of that constitution, it has continued to fail in its obligations to ensure respect for, and observance of, human rights and fundamental freedoms, and to support the right of all Cambodian citizens to undertake activities which would promote and protect human rights. Furthermore, it has continuously failed to act on certain important provisions of its constitution.
Cambodias performance on fundamental rights has remained very poor. As stipulated in the Paris Peace Agreements, these fundamental rights comprise of: the rights of life, personal liberty, security, freedom of movement, freedom of religion, assembly and association including political parties and trade unions, due process and equality before the law, protection from arbitrary deprivation of property or deprivation of private property without just compensation, and freedom from racial, ethnic, religious or sexual discrimination.
Despite the generous aid it has received, an average of over US$500 million a year since 1993, and its exploitation of forests and the country’s other natural resources, Cambodia has not been able to meet the right to life of its people. According to UNICEF, one in three Cambodians still lives below the poverty line of one US dollar a day. Cambodia has the highest infant and under-five mortality rate in the region, at 97 and 141 per 1,000 live births, respectively. It has a net primary school enrollment and attendance of 65 per cent. In 2005 the annual number of under-5 deaths was 61,000 for a country of 14 million inhabitants.
Cambodians have not been able to enjoy personal liberty and security when their country is rife with crime of all sorts. Nor have they been able to enjoy freedom of assembly and association, when peaceful public protests and demonstrations have been practically banned since early 2003. Requests for permission for demonstrations are subject to severe and meticulous scrutiny, and very few have been authoritsed. The police have used force to crack down on, and stop any unauthorised protests and demonstrations.
As regards political freedom and labour unions, opposition party activists and unionists have been harassed, intimidated, threatened and even killed. In March 2007, a candidate named Hak Sok from a newly formed political party, was shot dead in his own home, just days before the commune elections. In February 2007, a labour unionist, Hy Vuthy, was shot dead in Phnom Penh while riding home after his night shift.
Public authorities have undermined the due process of law when they have invariably issued orders, for instance to forcibly evict people from their land, or punish those who defy their orders. In April 2007, the governor of the seaport town of Sihanoukville did not apply for court orders, but simply sent armed police together with tractors to evict villagers and demolish their houses, turning those villagers homeless, on the charge that they had been illegally occupying other peoples property. Between the end of July and early August 2007, the government ignored the due process of law to get a luxurious housing development company to comply with its order to stop its construction work, it simply sent a team of officials together with workers and excavators to completely demolish a luxurious housing estate, estimated to be worth US$20 million, that company had been building.
Cambodians have not enjoyed any equality before the law. The powerful and the rich can get away with their crimes while the weak and the poor, including the innocent, at times have to face the law for crimes that they may or may not have actually committed. In 2004 a prominent labour union leader, Chea Vichea, was murdered. Two men, Born Samnang and Sok Sam Oeun, were arrested and later sentenced to 20 years in prison, despite alibi proving they had not been at the scene of the crime at the time of the murder, and the absence of prosecution witnesses in court.
In recent years the right to protection from arbitrary deprivation of property or deprivation of private property without just compensation has been notoriously violated. The powerful and the rich, in connivance with the powerful have grabbed land from people who have legally owned or occupied it, and offered them compensation worth a fraction of the market price of their land. Armed police are sent in to quell any protests or resistance to evictions. In August 2007, a group of 100 people comprising of armed civilians and military police in uniform and some personnel with sticks, hammers and axes allegedly hired by a company known as 7NG, went to the Dey Krahorm community in Phnom Penh to demolish houses, huts and tents in the area, without having any court order. Some 400 families protested against and resisted the demolition. Clashes occurred in which four women were badly beaten up.
There are also violations of other constitutional rights such as freedom of expression and freedom of the press, but they are not enumerated here. Having said this, Cambodians enjoy have enjoyed freedom of movement since 1993 and can travel anywhere inside or outside the country. Until July, 2007 when the government has curtailed the proselytizing work of Christian activists, they also enjoyed freedom of belief and of religion.
Cambodia has also failed in its undertaking to support its citizens who are engaged in promoting and protecting human rights. Public authorities have controlled and restricted their activities, intimidated and threatened them, and even accused them of incitement to protests and riot. Many government officials have continued to see human rights activists as trouble-makers. In 2005 the Ministry of Interior issued an order prescribing that NGOs and associations must have permission from provincial governors before they can hold seminars or training sessions. In April 2007, the police in the seaport town of Sihanoukville set out to arrest a human rights activist for inciting villagers to protest against, and resist eviction from their land. That activist had to go into hiding to avoid arrest.
On this 14th anniversary of the constitution, reflection should also be focused on the functioning of certain institutions stipulated in that constitution, namely the Judiciary, the Constitutional Council, the Supreme Council of National Defense and the National Congress.
The Paris Peace Agreements spelled out unambiguously that an independent judiciary will be established, empowered to enforce the rights provided under the constitution. The constitution has affirmed the separation of powers and this judicial independence. It has even assigned the judiciary the task of protecting the rights and freedoms of citizens.
However, in practice, the judiciary is not independent and is not given adequate resources for its functioning. It is under political control through direct government action against judges, through discrete intervention by powerful government officials, and/or through the affiliation of judges and prosecutors to the ruling Cambodian Peoples Party (CPP). The CPP is a former communist party whose discipline and control are as strict as ever. In August 2007 the government bypassed the Supreme Council of the Magistracy, a supposedly independent constitutional body whose one task is to nominate and discipline judges and prosecutors, and arbitrarily removed Ly Vouch Leng, President of the Court of Appeal, and nominated You Bun Leng as her replacement.
As a result of such political control and lack of resources, the judiciary cannot, or is unwilling to protect the rights and freedoms of the Cambodian people. The newly enacted code of criminal procedure does not offer much help to the judiciary to carry out its constitutional duties. This code, enacted in August 2007, does not have sufficient provision to ensure full protection of the constitutional rights of the Cambodian people. For instance, a suspect in police custody cannot have the right of access to legal counsel or the right to contact a person of his or her choosing until after the 24th hour of his or her arrest, and then for only 30 minutes. He or she does not have to the right to medical treatment while in police custody. Only the custodial officer or the prosecutor can assign a doctor to visit him or her.
There are long delays in the administration of justice, impunity for the powerful and the rich, no equal protection by the law and no equality before the law. Backlogs of thousands of cases and prolonged delays, especially at the Court of Appeal, are an additional punishment for those who languish in jails where the conditions are well below the UN minimum standards. Bail is an exception rather than the rule.
The Constitutional Council is not independent and impartial. This Council has nine members, but the most of them are political appointees and are members of the ruling party (CPP). Furthermore, not all of them have the qualifications and expertise in the fields stipulated in the constitution, that is, law, administration, diplomacy or economics. The constitution itself bars its accessibility to the public. Only the king, the prime minister, members of the parliament and senators can raise issues of constitutionality with it. Litigants in court may raise the constitutionality of laws or regulations with the Constitutional Council through a complex procedure to the Supreme Court first, when they feel that those laws or regulations affect their rights.
As to the Supreme Council of National Defense and the National Congress, they have not yet been set up, even 14 years after the promulgation of the constitution.
The King is the Supreme Commander of the Royal Cambodian Armed Forces (RCAF) and is to chair the Supreme Council of National Defence. It is not clear to whom or to which body the RCAF and their Commander-in-Chief is accountable if there is no such council. In the interim, it is apparent that they are accountable to the Prime Minister who is using them to reinforce his power.
The National Congress is a congregation of Cambodian people across the country which is supposed to be held every December, and to whom the government reports on various matters of national interests. All citizens have the right to participate in this forum. This congress can raise issues for state institutions to address. The Prime Minister convenes this congress, which is chaired by the king. In a way, through this forum, people can hold their leaders to account.
The Asian Human Rights Commission (AHRC) urges the Cambodian government, parliament and the judiciary to fully honour Cambodias human rights and all other obligations under the Paris Peace Agreements of 1991 and the constitution of the country. The government and parliament should respect the separation of powers and the independence of the judiciary and allocate adequate resources for it to protect the rights and freedoms of the Cambodian people. They should ensure that the Constitutional Council is an independent body run by independent people with the qualifications and expertise required by the constitution. They should also ensure that this council is easily accessible to the public.
The AHRC also urges the government and parliament not to further delay the creation of the Supreme Council of National Defence and the National Congress. Any omission in this task is simply unconstitutional.
The AHRC further urges donors and UN and international agencies to work with the Cambodian government, parliament and judiciary to ensure that all of Cambodia’s obligations under the Paris Peace Agreements and its constitution are fully honoured without any further delay, 16 years after the signing of those agreements and 14 years after the promulgation of that constitution.
