EXECUTIVE SUMMARY
Year 2009 has been marked by an increase in restrictions on the freedom of expression, especially against politicians and representatives of civil society organizations critical of the Cambodian Government. Consequently, at least twenty-two complaints were filed by government officials against dissident politicians and civil organization representatives, with an additional twenty-five complaints against journalists. This year, the situation can be compared to 2005; although there has been a slight improvement in relation to sentencing in defamation cases. No one who has been accused of defamation charges has been jailed and the accused of other charges have been given more chances to escape overseas comparing to 2005. Notably, it has become a tendency to restrict this freedom right after the general elections and the formation of a new government. With new elections looming, the situation has been loosen. We expect, this time, similar tendency would be repeated.
The freedom of assembly – exercised through non-violent protests – has been strongly restricted, particularly in relation to the victims of forced evictions. Various restrictions have been introduced at both the village and commune levels to disperse gatherings and prevent protesters traveling to Phnom Penh. Protestors arriving in Phnom Penh have been banned from staying overnight in public parks or pagodas. Protestors spending the night at Human Rights NGO offices have been harassed by local authorities. Despite fewer crackdowns compared to 2008, peaceful demonstrations against private companies linked to high-ranking military officers or government officials have been severely suppressed by the armed forces. Demonstrations against commodity price rises, border disputes, or the implementation of government policies are forbidden.
The new Penal Code and Law on Demonstrations, adopted in 2009, have both raised further concerns on the right to freedom of expression and assembly. Government declarations on the draft NGO Law have created considerable alarm among both international and national NGOs. Despite the number of operational radio and TV stations increasing in 2009, this development cannot of itself be considered a positive sign. Freedom of the press should not be measured through quantitative data, but on the space the Government allows for criticism. In 2009, twenty-five complaints were filed against journalists for defamation, misinformation and related offences. As a result, a number of journalists have been imprisoned. During the 6th Editor Forum, newspaper editors raised 10 points of concern relating to press freedom and made an appeal to the Government to allow the Press Law to supersede the new Penal Code in Cambodia.
Threats against human rights defenders have been a major and continuing concern over the past three years. In 2009, 235 human rights defenders (mostly land rights defenders) were charged with offences – 147 were arrested, with eighty-nine granted bails and fifty-eight remained in custody, while the remaining eighty-eight have managed to elude questionable arrest warrants. Compared to 2008 (164 prosecutions), the threat to Human Rights defenders has increased considerably. Of greater concern still, several Human Rights defenders have been threatened by the Courts with the charge of incitement.
Cambodia’s ratification of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2007 illustrated the Government’s intention to combat the use of torture. However, Cambodia is yet to fulfill its obligations under this Convention, especially as it relates to the establishment of an effective and independent mechanism to investigate alleged acts of torture. Ratification requires the establishment of an independent Committee on the Prevention of Torture, with the power and ability to effectively scrutinize and combat all kinds of torture and other cruel or unusual acts.
Human rights violations against women and children still remain a troubling issue. Despite the adoption of the Law on the Prevention of Domestic Violence and the Protection of Victims in 2005, the situation has deteriorated firstly because of less reasonable motives of violence and secondly, because more perpetrators are well off and more educated than in the last couple of years. For example, a son killed his father because the latter could not afford to provide him with a motorbike; a husband killed his wife because he suspected that she had stolen his 50,000 Riel, a grandson killed his grandmother who refused to sign inheritance documents. Whereas another country would have been shocked by these scandalous cases, no reaction has been observed in Cambodian society and no effective measure haven been taken by Cambodian authorities in dealing with this matter. The biggest concern is that the public might already be accustomed to such domestic violence and perceive it as normal, which would somehow, leads perpetrators to commit more savage crimes in the future. The lack of ability to separate the perpetrators from the victims, combined with the common practice of reconciliation between the perpetrators and the victims forces victims to live close to their perpetrators and exposes victims to a risk of prolonged violence.
Due to the decline of social morality, the use of drugs, lack of control on the access of pornographic films to underage children and the culture of impunity, rapes of women and children have shown no sign of shrinking down in 2009. A greater number of underage victims were raped in 2009 as compared to the previous year – 78.2% of rape victims were under 18 years of age in 2009, against 67% in 2008. Out of 460 cases received by ADHOC, sixty-six were mediated at local police stations and concluded with the payment of compensation, without criminal charges being brought.
Sexual exploitation and human trafficking remains one of the greatest problems facing Cambodian society. A lack of effective action on the part of local authorities has resulted in the United States classifying Cambodia as a Tier 2 Watch List country in 2009 (Cambodia was excluded in the list in 2008).
The forced eviction of civilian populations without adequate compensation remained one of the most pressing issues in 2009. Last year, twenty-nine cases of forced eviction affected 5497 families, with an additional seventy-one communities notified of impending eviction. An additional 410 out of 569 other communities living in slum areas have already been recorded on the development plan of the Phnom Penh Municipality, are likely to face eviction and relocation over the next few years. According to information gathered by ADHOC, 70% of forced eviction victims have either abandoned or sub-let their relocation houses outside the city in order to return to Phnom Penh where they can look for work and access schools for their children.
Despite fewer reported cases of land seizures than in 2008, a greater number of civilians were arrested and prosecuted in 2009. Discordantly, no prosecutions have been instigated against the corporations or private entities responsible for violent land seizures and the destruction of property. Citizens have lost confidence in conflict resolution mechanisms at the local level as authorities often act as both the defender of private interests and the dispute mediator. As a result, a greater number of aggrieved citizens have started seeking justice at the national level. Regrettably, national authorities lack the attention and willingness to provide justifiable solutions to these conflicts, leaving these citizens with no further avenue for redress.
A widespread atmosphere of impunity has further enflamed tensions between civilians and government entities, with government officials often escaping sanction or punishment for criminal offences. High-ranking police and military officials are often implicated in the concealment and suppression of crimes allegedly committed by colleagues and subordinates. Questions regarding the impartiality and competency of the Cambodian Judiciary have significantly compromised the availability of due process of law and access to a fair trial, resulting in an increased number of unsatisfactory out-of-court settlements negotiated between parties of unequal standing.
The proposed introduction of several new pieces of legislation has become an increasing cause for concern within civil society institutions. In particular, the Penal Code and the Law on Demonstrations are both seen as a terrible setback for freedom of speech and freedom of assembly, and further consultation is urgently needed to ensure real and effective progress can be achieved. Disappointingly, little or no progress has been made on proposed amendments to the Law on the Supreme Council of Magistracy, nor on the introduction of the Law on the Statute of Judges – legislation considered vital by Human Rights NGOs to ensuring the independence of Cambodian judicial institutions.
The Government’s decision in June 2009 to forcibly retire four members of the Supreme Council of Magistracy is not only an infringement upon the supposed independence of the Judiciary but also a grave violation of the Constitutional principle of the Separation of Powers. A sub-decree is a legal document that can be used in the Executive branch of the government only not in other constitutional institutions. The use of a sub-decree in the management of the judicial institution is a violation to the principle of the constitution.
Repeated calls for wide-ranging judicial and legislative reforms have been consistently ignored, whilst long standing problems -such as corruption and a lack of accessibility to justice system- have deteriorated.
The trial of Kaing Guek Eav – alias ‘Duch’ – in the Extraordinary Chambers in the Courts of Cambodia has been considered a great success, despite slow progress from the very start. This trial has provided much-needed testing for the Civil Party system in practice but it has also proved that the current form of Civil Party participation has been improved for complex international criminal trials in order to suit the needs of the majority of victims. The fusing of the Civil Party system with the Internal Rules has raised many complex questions concerning the fairness and efficiency of trial. The reputation of the Court relies heavily on its ability to function effectively and efficiently, and it must protect and promote its impartiality and independence in order to bolster its own credibility.
The ECCC’s decision to proceed with the additional suspects is not the matter of one-sided politics but it is a result of very legal procedural mechanism that both the UN and the Cambodian government agreed upon. What is significant to the victims is not the number of cases the Court agreed to take on but whether justice can be provided independently through this Court.
Furthermore, the ECCC Internal Rules permit victims to ask for collective and moral reparations, but the meaning of these reparations is very unclear in term of outcome that is available to victims. It is also worth mentioning that any reparation order should not be imposed upon by any expert or organization without consulting the general opinion of the victims. Although, there have been various discussions among civil societies organizations and the Court officials alike on the financial aspect of reparation scheme, we have not yet seen any progress or initiative being taken on this issue.
