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UN HRC: Report of the Special Rapporteur to Cambodia

Publisher Article 19
Publication Date 24 August 2011
Cite as Article 19, UN HRC: Report of the Special Rapporteur to Cambodia, 24 August 2011, available at: http://www.refworld.org/docid/4e562e652.html [accessed 18 December 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Following publication on 2 August 2011, ARTICLE 19 have pulled the following extracts from the UN Human Rights Council Report of the Special Rapporteur, Surya Subedi, on the situation of human rights in Cambodia. The full report can be downloaded below.

Freedom of expression

1. The state of the right to freedom of expression and opinion in Cambodia remains amatter of concern. There has been a disproportionate use of defamation and disinformationprovisions in the law by the Government against journalists, human rights defenders andpolitical leaders, who seem to be resorting to self-censorship because of the fear of suchpossible charges against them.

2. The Special Rapporteur noted that provisions in many laws in Cambodia, includingeven the new Penal Code, go beyond international standards in curtailing people'sfreedoms, as do the courts' application and interpretation of such laws. The courts do notdemonstrate sufficient understanding of the evolving international practice andjurisprudence and have a tendency to interpret the law literally rather than in spirit. Forinstance, in August 2010 Leang Sokchoun, a staff member working for the CambodianLeague for the Promotion and Defense of Human Rights (LICADHO), and two others,Tach Vannak and Tach Le, were sentenced to two years in prison and a fine of two millionriel, and another defendant, Tach Khong Phoung, was tried in absentia and sentenced tothree years' imprisonment. They had been accused of distributing anti-government leafletsin Takeo province on 4 January 2010. The trial on 30 August was marked by a number ofdeficiencies, indicating that the defendants did not enjoy a fair trial. The evidence presentedand the situation around this case suggested that elements for conviction under article 62 ofthe Penal Code for the crime of disinformation had not been not satisfied, as the allegedA/HRC/18/468distribution of the leaflets did not disturb the peace and it seems that no public-order issuesarose after the leaflets were found.

3. The Special Rapporteur on the situation of human rights in Cambodia, the SpecialRapporteur on the promotion and protection of the right to freedom of opinion andexpression, the Special Rapporteur on the situation of human rights defenders, and theSpecial Rapporteur on the independence of judges and lawyers jointly sent an urgent appealto the Government of Cambodia on 14 September 2010 on this case. The SpecialRapporteurs expressed concern that the situation of the four nationals might constitute aviolation of the right to freedom of expression and the right to a fair trial. They alsoexpressed concern that the conviction of one of the four nationals, who is a human rightsdefender, on the basis of alleged questionable evidence might have an adverse impact onthe working climate of human rights defenders in the country. The Special Rapporteurssought clarification on the investigation, and judicial and other inquiries related to thecases, the measures that were in place to guarantee fair trial, and how the sanction againstthe defendants with respect to the alleged distribution of fliers constituted a permissiblerestriction on the right of freedom of expression. At the time of writing, no response hasbeen received from the Government.

4. Similarly, on 3 February 2011, the Special Rapporteur on the situation of humanrights in Cambodia, the Special Rapporteur on the right to freedom of opinion andexpression, and the Special Rapporteur on the situation of human rights defenders jointlysent an allegation letter to the Government of Cambodia questioning the legal basis of thecase of Sam Chankea and Reach Seima, convicted of disinformation and defamation underarticle 305 of the new Penal Code, for allegedly pointing out in a radio interview theunresolved legal status of an ongoing land dispute and the unlawful act by the companyinvolved, KDC International, of bringing machinery to work on the land (see backgroundinformation in para. 13 above). Mr. Chankea is a local coordinator of the human rightsorganization Adhoc. His comments in the broadcast of Radio Free Asia on 26 December2009 were that "what the company has done violates the law because the court has yet torule on the merits of the case. Therefore the company should suspend the activity and awaitthe court decision". The company claimed that the comments were not true and uponreceiving that complaint, the public prosecutor brought a charge of defamation against theAdhoc coordinator. When the case went to the court, the trial had a number of shortcomingswhich suggested that it did not meet the standards of a fair trial. Mr. Chankea wassentenced to pay 4 million riel in fines and compensation or face three months'imprisonment. Mr. Seima was sentenced to pay 10 million riel in fines and compensation orface six months in jail. The use of criminal defamation proceedings against human rightsworkers promoting a fair resolution of a land dispute is a matter of serious concern. At thetime of writing, no response has been received from the Government.

5. Another case in point is that of Seng Kunnaka, a staff member of the World FoodProgramme, who was convicted of incitement to commit a felony by Phnom PenhMunicipal Court on 19 December 2010, and was sentenced to six months' imprisonmentand a fine of 1 million riel. On 17 December 2010, Mr. Kunnaka was arrested and takeninto custody in Russei Keo district for questioning for 48 hours. On 19 December 2010, hewas tried by the Phnom Penh Municipal Court under the new Penal Code and convicted forprinting information materials from an Internet website and sharing them with twocolleagues in his workplace. The materials appear to include caricatures of political leaders,which were called "traitors". Observers were not authorized to attend the trial proceedings,which were held in camera. The trial took place two days after his arrest and on a Sunday,when courts are normally closed other than for exceptional cases. It looked as if theprosecutors did not have time to properly investigate the case and the Court was in rush todeliver a verdict without allowing for a proper trial. An urgent appeal was jointly sent bythe Special Rapporteur on the situation of human rights in Cambodia, the SpecialA/HRC/18/469Rapporteur on the right to freedom of opinion and expression and the Chair-Rapporteur ofthe Working Group on Arbitrary Detention on 22 March 2011, seeking clarifications on thelegal basis of the conviction of Mr. Kunnaka. The Special Rapporteurs expressed concernthat article 495 of the new Penal Code may have been interpreted to curtail theconstitutional exercise of freedom of opinion, expression and information, rather than toprotect the public from the commission of any crime. At the time of writing, no responsehas been received by the Government.

6. The Special Rapporteur observed that courts implement laws that do not conform tothe nature and scope of the rule of law in the first place and thus risk being used by theexecutive for political purposes. An example of this is the 10-year jail sentence imposed onopposition leader Sam Rainsy in absentia after he had been found guilty of a falsification ofpublic documents and disinformation, a charge that was allegedly politically motivated. TheSpecial Rapporteur had hoped that the Court of Appeal or the Supreme Court would bemore objective during the appeal of the opposition leader's case. Regrettably, the SupremeCourt upheld in March 2011 the verdict of the Court of Appeal, which had upheld theverdict of the court of first instance. The allegation made by the Government was that Mr.Rainsy had manipulated a map to show that Viet Nam had encroached on the territory ofCambodia. In any properly functioning democracy, such political matters would be debatedin the parliament and become a matter of public debate rather than the subject of a criminalcase before courts. Scrutinizing the activities of the Government and requiring theGovernment to respond to any criticisms of its policy decisions is one of the basic functionsof the leaders of opposition parties and they should not be subjected to criminalproceedings for discharging their responsibilities in a peaceful manner.

7. On 24 August 2010, the Special Rapporteur wrote to the Prime Minister andprovided him with a briefing note outlining the international human rights perspective onthe use of defamation proceedings and disinformation charges. The Special Rapporteurhighlighted how important it was for the protection of democratic space for public debatethat public authorities and politicians, as well as members of the media and the public whoparticipate in these debates, tolerate dissenting views and do not regard them as personalattacks. The Special Rapporteur referred to a worrying trend of restrictions on freedom ofexpression in the form of criminal defamation, disinformation and incitement suits that hadresulted in prison terms for individuals, including journalists, NGO workers andparliamentarians, who had no intention of affecting national security. The SpecialRapporteur has regularly noted that, in defamation cases, the complainant appears not tohave proven that his or her reputation has been damaged (one of the elements of the crimeof defamation). With regard to disinformation cases, the Special Rapporteur has noted thatthere was often no proof tendered to the court that the information in question endangerednational security (an element of the crime of disinformation).

Recommendations

A. Parliament

I. General

1. Cambodia needs to accelerate the process of democratization in the country.There should be a genuine will and attempt at political reconciliation so that allpolitical actors enjoy equal opportunities to make their contribution to the country'spolitical and economic development and parliamentary process. The right of allparliamentarians, including minority as well as majority parties, to carry out theirduties should be fully respected.

2. The Constitution of Cambodia makes it mandatory to hold a National Congressonce a year under the chairmanship of the King to enable the people to be directlyinformed on various matters of national interest and to raise issues of concern to theauthorities of all three main organs of the State. This is a unique and innovativeprovision of direct democracy which could constitute an appropriate forum forachieving national political reconciliation, reviewing the progress made in promotingand protecting human rights and for strengthening the sovereignty of the country.Since the King is the guarantor of the Constitution, the monarch should be able toreceive people in audience and receive information from people from all walks of life.However, no such National Congress has ever been held. It should be held every yearas mandated by the Constitution. For this, the organic law relating to NationalCongress should be enacted without any delay.2. Strengthening the capacity and the workings of Parliament

3. The Human Rights Commissions in Parliament should mainstream humanrights as a cross-cutting issue and work towards ensuring the compliance of domesticlaws with international human rights standards.

4. The opposition parties should participate fully in the work of Parliament andcooperate, in particular in the work of the Commissions of the National Assembly.

5. The internal procedures of Parliament in general and the National Assembly inparticular should be revised to encourage equitable or proportionate sharing of powerand responsibility in parliamentary activities and especially in the leadership positionsin the various parliamentary Commissions.

6. The procedure for removing parliamentary immunity and other disciplinaryactions against sitting Members of Parliament should be brought in line with theprinciples of natural justice, constitutional standards and freedom of expression.

7. The Government should increase the resources allocated to Parliament toenhance the overall capacity of Parliament as an independent and effective institutionA/HRC/18/4619and the capacity of individual Members of Parliament to scrutinize draft laws tabledbefore Parliament by the Government.

8. Parliament in general and the National Assembly in particular should increasetheir effectiveness in overseeing the work of the executive and holding the latter toaccount. The environment should be made conducive for parliamentarians to openlyquestion policies and decisions of their own parties. In this regard, there should be aclear understanding that being a Member of Parliament comes with specificresponsibilities that transcend party lines.

9. The Secretary-General of both houses of Parliament should be an independentperson and not an active member of any political party.

10. The recruitment of officials of Parliament in general and the NationalAssembly in particular should be conducted on the basis of merit and through acompetitive and transparent process.

11. Draft laws should be published for public consultation and especially in outletssuch as the Official Gazette. The Gazette itself should be made accessible to membersof the public.

12. Laws should not be enforced until they are published in the Official Gazette.

13. Parliamentary Commissions should review regulations adopted by theGovernment to ascertain whether they exceed the scope of the original laws.

14. The requirement to be part of a group of 10 Members of Parliament in order toparticipate in parliamentary debate should be removed, affording all individualMembers of Parliament equal opportunity to participate in such debate.

15. The main opposition party should have a constructive role to play in theappointment of members of various constitutional bodies, such as the electioncommission, to ensure that they are able to operate in an impartial and independentmanner.

16. As in many other parliaments around the globe, the ruling party should invitethe opposition parties to chair some of the Commissions in Parliament in general andin the National Assembly in particular. This would strengthen parliamentary cultureas well as the culture of opposition. This used to be the case in Cambodia, but inrecent years the situation has regressed in this regard.

17. Constituents should have easy access to parliamentarians in order for the latterto better represent them in Parliament.3. Enhancing the effectiveness of the Constitutional Council

18. The Constitutional Council should review not only the laws enacted byParliament but also the internal rules of Parliament in general and the NationalAssembly in particular to ascertain whether they are compatible with theConstitution, international human rights standards, and the principles of rule of law,including the principles of natural justice.

19. Any law enacted by Parliament which has direct implications for human rightsshould automatically be referred to the Constitutional Council for review before it ispresented to the King for royal assent.

20. Access to the Constitutional Council should be widened: certain recognizednon-State actors, such as professional associations of lawyers and law professors, aswell as citizens under narrowly defined conditions and in exceptional cases, shouldhave access to the Council.A/HRC/18/4620

21. The Council should consist of the best legal and independent brains of thecountry, drawn from among the retired Supreme Court judges, distinguishedprofessors of law and senior lawyers of the country.

22. The practice of appointing to the Council people without a legal backgroundand without a long legal service to the nation and on the basis of their party politicalaffiliations should be discontinued.4. Parliament and the freedom of expression

23. Parliament should review the new Penal Code with a view to ensuring itscompliance with the permissible limitation to freedom of expression underinternational human rights law.

24. Parliament should safeguard the right to freedom of expression of its ownmembers and protect their parliamentary immunity.B. Freedom of expression

25. The judiciary should interpret the provisions of the Penal Code in line withinternational human rights standards of freedom of expression. The Ministry ofJustice should call on the international community, including the Office of the UnitedNations High Commissioner for Human Rights, to provide training for judges,prosecutors and lawyers in this regard.C. Land and housing rights

26. The Government is urged to examine the current trend of unresolved landdisputes in the country and address the alarming patterns of violence by facilitatingdialogue among potentially affected communities, local, provincial and nationalauthorities, and private enterprises.

27. The Government should engage the people affected by land disputes inmeaningful consultation regarding adequate compensation, or adequate alternativehousing options, where applicable. Authorities should respect and protect the rights ofsuch people, including by ensuring that they are not subjected to excessive use offorce, harassment and intimidation, that they can exercise their right to peacefulprotest, and that defamation, disinformation and incitement charges are not broughtarbitrarily.

28. The Government is advised to exercise greater transparency in economic landconcessions and other land deals involving Government officials or privateenterprises, and is encouraged to strengthen the capacity and independence of thecourt system, the cadastral commissions, and the National Authority for Land DisputeResolution so that they may exercise accountability, impartiality and greaterefficiency in resolving disputes.

29. The Government is urged to enforce the existing provisions of the 2001 LandLaw that prohibit interference with indigenous land and accelerate the pace of landregistration for indigenous peoples to obtain collective title; interim protectionmeasures should be implemented on all land where indigenous communities live untilthe registration process is completed and titles obtained.

30. When engaging in land deals either with the Government of Cambodia or otherland owners, foreign Governments and international business organizations shouldA/HRC/18/4621bear in mind that they have a responsibility under international law to respect thehuman rights of the people of Cambodia. Sponsorship of the use of armed lawenforcement officials to carry out an unlawful eviction is illegal under internationallaw and should be made illegal in Cambodia as well.

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