Countries at the Crossroads 2006 - Cambodia
|Publication Date||3 August 2006|
|Cite as||Freedom House, Countries at the Crossroads 2006 - Cambodia, 3 August 2006, available at: http://www.refworld.org/docid/47386910c.html [accessed 23 November 2017]|
|Disclaimer||This 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.|
(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)
After decades of civil conflict, Cambodia has made significant progress in restoring peace and political stability, reducing social tensions, and building the institutions of democratic governance. Major obstacles remain, however, to the establishment of a pluralist democratic society in which those goals may be realized fully. The UN intervention of 1992-93 and more than a decade of international development assistance have brought Cambodia the institutional rudiments of a democracy built on respect for human rights and the rule of law, but the state appears both unwilling and unable to guarantee either. Very few elements of a modern chain of public accountability are in place, resulting in poor governance and extensive corruption. Governmental dysfunction has obstructed the development process, with the greatest cost borne by the poor and vulnerable. Despite large injections of foreign aid, basic social indicators have seen scant improvement over the last decade. Ranked 130th of 177 countries in the UN's human development index1, Cambodia trails its neighbors in literacy, life expectancy, and infant mortality rates.
Cambodia thus sits at a fragile juncture in its transition from a hierarchical political system that prioritizes stability and control to a more liberal democratic society. Some 80 percent of the population are engaged in the subsistence rural economy, and to a large extent Cambodian social and political structures remain driven by traditional hierarchical patron-client relationships. Such ties rely on inequalities of wealth, status, and power and personalized interactions between the powerful and weak, in contrast to the impersonal guarantees of physical and economic security, such as the rule of law, that underpin liberal democracies. This lends itself to authoritarian forms of power politics antithetical to the principles of deliberative democratic interaction.
Against the legacy of the Khmer Rouge period, this poses a difficult reform environment even for the most committed government. Developing a decentralized, open democracy based on formal rules of law and a diversified market economy would alter the rule-and-incentive system under which the entire country operates. Powerful vested interests threatened by this objective have inevitably sought to obstruct reformists.
The 11-month political deadlock that followed the July 27, 2003, National Assembly elections highlighted the fundamental lack of legitimacy of the democratic process in Cambodian realpolitik. The prime minister, Hun Sen, consolidated his political and economic patronage system in response to an ambitious reform program proposed by the Alliance of Democrats (a coalition of FUNCINPEC and Sam Rainsy Party [SRP] opponents backed by former king Norodom Sihanouk, elements of the Cambodian People's Party [CPP], and prodemocracy urban civil society groups), which aimed to moderate Hun Sen's grip on power and level the political playing field2. Whether Hun Sen will take advantage of this consolidated power base to stall reform remains an open question.
Accountability and Public Voice – 3.28
Cambodia's constitutional monarchy is headed by the king, Norodom Sihamoni. Executive authority is vested in the Royal Government of Cambodia, led by the prime minister. The bicameral parliament comprises a 123-seat National Assembly and a 61-seat Senate. The king appoints the prime minister and council of ministers from among the elected National Assembly representatives. Since 1993, National Assembly elections have been held regularly every five years. Cambodia's Election Law is fair; suffrage is universal and equal for Khmer citizens over 18 years, and voting is conducted by secret ballot.
National Assembly elections are open to multiple parties, although political pluralism is not well established. Since Cambodia's first democratic elections, in 1993, the CPP has used its dominance of the state apparatus to restrict opportunities for the effective rotation of power, including through the use of violence. Following the 1993 elections, in which FUNCINPEC won a greater share of the votes than the CPP, the latter forced the formation of a coalition that did not reflect the election outcome and enabled it to dominate its FUNCINPEC counterparts, gaining progressively greater control over Cambodia's administrative and security apparatuses. An ongoing power struggle between the CPP and FUNCINPEC co-prime ministers erupted in a coup of July 5-6, 1997, in which Cambodian elites demonstrated their continued unwillingness to resolve their differences through peaceful democratic means. Although FUNCINPEC remained part of the government, Hun Sen further consolidated political control and weakened FUNCINPEC's role in day-to-day governance.
The CPP increased its share of the vote in the most recent election, on July 27, 2003, winning 73 of 123 seats, but fell short of the two-thirds majority needed to form a government unilaterally. A protracted deadlock in negotiating a coalition under the leadership of the prime minister, Hun Sen, destabilized the political climate and further stalled reform efforts. The CPP finally reached a power-sharing agreement with the National United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia (FUNCINPEC) on June 30, 2004, although the legality of this arrangement has been questioned. On July 15, the National Assembly approved the new coalition government by means of an Additional Constitutional Act, without meeting the stipulations of Article 119 of the constitution requiring formal appointment by the king. Questioning the legality of this act, all 24 opposition SRP National Assembly members boycotted the session.
The Senate, established in March 1999, resulted from a power sharing compromise between the CPP and FUNCINPEC following the 1998 National Assembly elections. The first Senate's 63 members comprise three CPP/FUNCINPEC nominees, two senators nominated by the king, and a further 56 senators nominated by political parties in proportion with their standing in the National Assembly. Constitutional amendments in 1999 allowed for the indirect election of all but three senators beginning in 2004. In the event, this election was delayed, reflecting the endemically slow nature of political change in Cambodia and exacerbating concerns over Hun Sen's commitment to the political reform process. Following the eventual passage of the Senate Election Law in May 2005, a senate election is now scheduled for January 22, 2006. An electoral college of 11,384 commune council and National Assembly members will elect 57 senators by secret ballot for a six-year term, under a proportional representation system that, given that electors are expected to vote along party lines, is unlikely to affect the political balance of power. A further two senators will be appointed by the king, with the remaining two elected by a majority vote of the National Assembly.
At the provincial level, governors are appointed by the prime minister and are currently distributed between the CPP and FUNCINPEC. At the local level, commune councils were elected for the first time in 2002, as part of the government's policy to devolve public administration and decision making to the commune level. The Law on Commune Administration provides for commune councils to select the commune chiefs; in practice the CPP generally appoints them at the national level. The CPP's dominance over commune authorities in rural areas, where 80 percent of the population resides, has limited public participation in democratic debate. Opposition parties have found it difficult to establish themselves and oppositional social movements are rare. Local politics replicates traditional authoritarian structures, whereby commune chiefs make most decisions with little participation by villagers. Democratic participation in Cambodia thus remains an elite, urban affair, and there tends to be little popular awareness of politics as a multiparty sphere of debate.3
State-sanctioned political violence continues, generally with impunity. Although the 2003 National Assembly election was less violent than those of 1998 and 2002, at least 14 killings were recorded during the election process, including those of a FUNCINPEC politician and a senior judge.4 Killings continued during the post election deadlock, including the assassination in October 2003 of a FUNCINPEC radio station editor and the shooting of a pop star linked to FUNCINPEC.
State-sponsored intimidation of the SRP, Cambodia's only significant opposition party, casts doubt on the government's commitment to genuine pluralist politics. Of particular concern was the revocation by the National Assembly in February 2005 of the parliamentary immunity of Sam Rainsy and fellow SRP legislators Chea Poch and Cheam Channy. In August 2005, the latter was sentenced by a military court to seven years' imprisonment for allegedly trying to recruit an armed group, despite the court's lack of civilian jurisdiction or any evidence to prove the case. [Editor's note: On December 22, 2005, Sam Rainsy was convicted in absentia of defaming Prime Minister Hum Sen and Prince Norodom Ranariddh. He was sentenced to 18 months in prison and remains in self-imposed exile.]
Despite some irregularities, election conduct has been credible in terms of registration, polling, and vote counting, with little evidence of police or military interference. Elections have nonetheless been marred by uneven campaign opportunities, fraud, political violence, and intimidation. The majority of election-related instances of corruption occur in rural areas, where party leaders are embedded in traditional patron-client social networks. Although all parties campaigned freely in 2003, the CPP used its control of the primary mechanisms by which Cambodians receive information – the broadcast media and the commune chiefs – to malign its political opponents. It also used state resources, including transportation, personnel, and office space, to further its campaign. All the major parties engaged in vote buying, and the campaign environment was further sullied by government restrictions on and arrests of political opponents.
Election administration is politically biased. The National Election Commission (NEC) is controlled by the CPP, and provincial commune election committees are almost exclusively affiliated with the CPP or FUNCINPEC. The NEC's administrative capacity is weak, and it has proven ineffective in investigating and penalizing electoral offenses and in operating an effective complaints system. Campaign finance regulations are inadequate. The 2006 Senate election, the first to be conducted wholly by the NEC without international assistance, will provide an acid test of the NEC's capacity to oversee a free and fair election.
Although the principle of separation of powers is enshrined in the constitution, the CPP's dominance over state institutions blurs the distinction between the ruling party and the state, particularly at the commune level. The National Assembly does not provide a significant check on the executive due to its inexperience in drafting legislation and inadequate resources for its secretariat, as well as the CPP's dominance, although it is gradually becoming a more significant forum for debate. There is no active policy requiring the government to discuss its programs with the National Assembly.5 The Senate's role is largely perfunctory.
Appointment, promotion, and dismissal of civil servants are not merit based or transparent. A large proportion of civil servants were appointed because of their support for either the CPP or FUNCINPEC.
Cambodia's independent civic sector has expanded rapidly since the first nongovernmental organization (NGO) was registered in 1991. Citizens are not compelled by the state to belong to associations, and with the exception of armed groups, which are banned, the state seldom inhibits membership in associations. Civic, business, and cultural organizations operate with relative freedom and comment publicly on government policy. However, state-sponsored intimidation and attacks still occur, particularly on civil society organizations active in the political sphere. There are few established channels for government-civic dialogue, although pressure from international donors, which have strongly backed the development of civil society, has sometimes been effective in securing such dialogue.
The constitution protects freedom of expression, press, and publication, as long as these do not adversely affect "public order," "national security," and "political stability." The 1995 Press Law prohibits prepublication censorship and imprisonment for expression of opinion. However, a national security caveat empowers the government to fine, suspend, and confiscate newspapers.
The print media are relatively free and accessible to all major parties. Newspapers have contributed to both government accountability and freedom of expression, although they reach less than 10 percent of the population. The two largest newspapers are considered pro-CPP, but many of the dozen or so Khmer- and English-language newspapers that publish regularly carry a wide range of items critical of the government, the prime minister, and the CPP. At least two dailies are controlled by the SRP.
By contrast, the CPP exerts tight control over the broadcast media. Cambodia's 20 radio stations and seven TV channels reach more than half the population and are the main sources of information in many rural areas. CPP coverage overwhelmingly dominates that of its opponents, and licensing of television and radio frequencies is politically biased. The SRP has continued to be denied a radio license.6 The internet is unrestricted but has limited reach.
Media self-censorship is common. In addition, state censorship has included prohibiting rebroadcasts of Voice of America and Radio Free Asia reports, censoring live telecasts of National Assembly sessions, and banning the sale of publications. The government has also controlled media content through defamation provisions in the penal code and Press Law and threatened, detained, and suspended journalists. This included detaining Radio Free Asia and Cambodia Daily journalists in July 2004 and the arrest in October 2005 of the head of the independent radio station Beehive.
- The government should reform the NEC and its provincial counterparts, including by amending the Election Law, to establish clear recruitment and selection procedures that will ensure electoral officials are not politically affiliated.
- The government should take full responsibility for developing legislation on Senate elections and for the timely organization of this election.
- The government should take measures to improve state accountability and transparency, including establishing regular channels for government dialogue with civil society on policy making, merit-based civil service appointments, and strengthening the monitoring role of the National Assembly.
- The government must desist from interfering with and intimidating the media and ensure that media licensing procedures are not subject to bias.
- The government must end its intimidation of Sam Rainsy Party members and restore parliamentary immunity in accordance with the constitution.
Civil Liberties – 3.33
Article 38 of the constitution prohibits coercion and physical ill-treatment of detainees and prisoners, as well as arbitrary arrest and detention. Torture, arbitrary arrest, and detention provisions exist in Cambodia's principal criminal legislation, the 1992 Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period (hereafter the penal code) and the 1993 Law on Criminal Procedure. However, these provisions do not fully meet Cambodia's international obligations as a signatory to the Convention Against Torture.
In practice, numerous instances have been documented of physical and psychological torture of prisoners in police and prison custody, the vast majority of which occur immediately after arrest. There are few practical safeguards to protect against this.
The constitution and the Law on Criminal Procedure permit victims of state breaches of the law to file claims, but judicial corruption, reluctance to institute investigations, and bias in favor of state actors undermine the effectiveness of these provisions. State perpetrators of torture generally operate with complete impunity and, indeed, endorsement by high-level state actors.7 State actors routinely protect security forces and officials from prosecution or disciplinary action and consistently fail to investigate allegations of torture in detention, particularly of political opponents. In the minority of cases in which investigations are conducted, evidence is seldom uncovered, investigations are often deficient, and court delays are lengthy.8
Arbitrary arrest is common, and pretrial detention, often without access to lawyers or family members, routinely exceeds the legal limit of six months. A bail system has been introduced, but many prisoners do not have the resources to utilize it. Prison conditions are poor. Although banned in 1993, shackling remains widespread. Access by prisoners to food and medical care is restricted, particularly for those without family support, and prison overcrowding is a problem.9 Money and personal connections are the only effective guarantees of legal representation and release.
Citizens have few protections from abuse by nonstate actors, although the government's success in eliminating the Khmer Rouge and restoring stability since the 1997 coup has significantly improved the security environment for most Cambodians.
Cambodia has made significant progress in institutionalizing the rights of women. Gender equality is constitutionally guaranteed. The Labor Law prohibits gender-based employment discrimination, including sexual harassment, and laws also guarantee relatively equal voting and property rights. The Marriage and Family Law establishes gender equality in the family; the enactment of a Law on Domestic Violence in September 2005 was a major step toward improving the legal environment.
Cambodian women are nonetheless significantly underrepresented in government and the state, comprising only 9 percent of civil servants, 7 percent of judges, 8.5 percent of commune council members, and 12 percent of National Assembly members.10 In the paid labor market, female employment is largely restricted to the garment sector, which faces an uncertain future following Cambodia's WTO accession in September 2004. Women struggle to gain management positions, and average wages are 33 percent lower than those of men.11 Maternity leave, while legally guaranteed, is offered only in the state sector and a minority of private businesses. In the rural subsistence economy, which occupies 75 percent of the workforce, the ability of women to protect land rights or to gain access to credit or other agricultural services is limited.
The gender gap in paid employment is influenced by educational disparities. In upper secondary and tertiary institutions, fewer than 50 girls are enrolled for every 100 boys. Some 45 percent of female adults are completely illiterate, compared to 24.7 percent of men.12
The state is partially engaged in addressing these issues, particularly through the ministry of women's affairs, although it devotes few resources in this area. Efforts to combat gender discrimination are hindered by poor enforcement of institutional protections, resource shortfalls, and sociocultural discrimination.
The constitution prohibits commerce in humans, and trafficking is proscribed in the 1996 Law on Suppression of Kidnapping, Trafficking and Exploitation of Humans. The government has signed on to the relevant international protocols and participates in regional anti-trafficking initiatives, importantly with Vietnam. Despite this, state efforts to combat trafficking are generally ineffective, hindered by the involvement of the military, officials, and police, a weak judicial system, a lack of resources, and low technical capacity. Since the first child-trafficking conviction in 2002, the government has tended to prosecute only high-profile cases, remaining reluctant to press charges in the majority of instances, especially if the cases involve the police or military.13
The rights of non-Khmer ethnic minorities, who constitute 10 percent of the population, are inadequately protected. Discriminatory practices relate to citizenship and legal residence; electoral, natural resource, and cultural rights; and access to education and health care. Ethnic Chinese, Muslim Cham, and indigenous tribes are generally not discriminated against, but Khmers from southern Vietnam and ethnic Vietnamese are subjected to widespread animosity and racist propaganda. The state's treatment of indigenous minority asylum seekers from the central highlands of Vietnam remains problematic, and freedom of movement for Phnong indigenous people in Mondulkiri Province has also emerged as an issue.14 The legal rights of non-Khmer citizens are ambiguous. The constitution guarantees equality before the law only for Khmer citizens, and eligibility requirements for Khmer nationality under the 1996 Law on Nationality make it difficult for persons belonging to minority groups to establish their citizenship. This allows legal discrimination, particularly with respect to voting and land ownership, to which only citizens of Khmer nationality enjoy constitutional rights.
The rights of Cambodian children are routinely violated, despite legal protections. Child abuse, commercial sexual exploitation and other child labor, and sale for adoption are common. People with disabilities – who constitute up to 20 percent of the population, a legacy of protracted war and mine injuries in particular – are discriminated against at all levels of society. Disabled women and children are especially vulnerable to exploitation and discrimination in education and employment.
Buddhism is the state religion, but minority religions – Islam, Christianity, Baha'i and Cao Dai – are well integrated and experience little social or official discrimination. The constitution guarantees freedom of religious belief and worship, subject to a public order and security caveat. The state generally respects these rights, although it has occasionally banned Christian proselytizing and in September 2004, deported 12 Vietnamese Cao Dai followers. The state refrains from appointing religious leaders, and there are no significant restrictions on religious ceremony or education.
With unionization at less than 1 percent of the workforce, the union movement is small but growing. The 1997 Labor Law accords workers the right to form and join labor unions of their own choosing, to bargain collectively, and to strike. However, there is little political will to enforce this. Employers engage freely and regularly in antiunion activity and discriminate against trade union members, and the state has arrested union leaders for allegedly inciting violence. The assassination in 2004 of Chea Vichea, a trade union leader with SRP connections, and of garment factory union leader Ros Sovannareth, highlighted the continued impunity for politically motivated crimes.15 Although in August 2005 two persons were sentenced to 20 years' imprisonment for Chea Vichea's murder, fundamental principles of a fair trial were contravened.16
State intervention in demonstrations has for the most part been restrained, although demonstrations in 1998 and December 2002 were violently suppressed. The constitution guarantees the right to nonviolent demonstration, but under the 1991 Law on Demonstrations the state may ban gatherings deemed "detrimental to public tranquillity, order or security." The government has frequently refused to authorize demonstrations since the violent anti-Thai riots of January 2003, banning or otherwise intervening in at least 16 demonstrations in Phnom Penh in 2004, sometimes with excessive police or military force.17
- The government should fully and promptly investigate allegations of state torture and ensure appropriate prosecution and punishment of perpetrators. Practical safeguards in police stations and prisons should include regular independent inspections; guaranteed access for NGOs, doctors, and lawyers; administrative and criminal sanctions for police misconduct; recording of injuries sustained in detention; and procedures to ensure that evidence obtained through torture is inadmissible in court.
- The government should review its tightening of restrictions on demonstrations since January 2003.
- The government must prioritize strategies to promote gender equality, and in particular to upgrade the literacy and vocational skills of girls and women. This should include programs to improve access to services for women in rural areas.
- The government must step up efforts to combat human trafficking and the sexual and commercial exploitation of women and children, including prompt prosecution of trafficking cases involving state actors.
Rule of Law – 2.22
The justice system remains one of the weakest elements of the Cambodian state. The government has consistently failed to meet judicial reform benchmarks, including those agreed upon with donors at the 2002 and 2004 Consultative Group meetings (the key forum for bilateral and multilateral donors to discuss and coordinate international assistance for Cambodia's development process).
The constitution guarantees judicial independence, but separation of powers is not upheld in practice. Executive interference in the conduct of judges and prosecutors, all of whom are CPP appointees, is rife. This has included instructions for charges to be dropped, the dismissal of judges, the re-arrest of suspects released by the courts, and open intimidation of judges by members of the armed forces.18 Politically related crimes are seldom prosecuted; the politically powerful and their families enjoy impunity for even the most serious crimes.19 Judicial independence has been further undermined by the government's recent iron-fist policy to combat judicial corruption, which it has used to impose sanctions against court officials without following proper disciplinary procedures.20
Court budgets are not separate from the Ministry of Justice, and there is no declaration of assets requirement for judicial officials. The Supreme Council of Magistracy (SCM), which appoints, oversees, and disciplines judges and prosecutors, lacks independence, is unable to fulfill its disciplinary function, and has made questionable judicial appointments.21 The Cambodian Bar Association has become increasingly politicized, both through the admission of several senior CPP members in 2004, despite their lack of legal qualifications, and as a result of a continuing dispute over the election of its president.22
Cambodia's legal framework relies on an incomplete set of laws drafted hastily by the United Nations Transitional Authority in Cambodia, which implemented the Cambodian peace settlement from 1992 to 1993 and oversaw Cambodia's first democratic elections in May 1993. Drafts of a new penal code, a code on criminal procedure, a civil code, and a code on civil procedure have been prepared with international assistance, but there appears to be little political will to enact them.
The court system lacks both resources and an adequate institutional framework, resulting in lengthy delays and chronic maladministration. Corruption is endemic, due in part to extremely low salaries. There is an acute shortage of educated judges and lawyers; only one in six judges has a law degree, and only one of the nine Supreme Court judges does.23 Specialist legal education is now offered, including at the Royal School of Judges and Prosecutors established in November 2003, but it will be some years before this has a positive impact. Ultimately, better education and remuneration are unlikely to improve judicial conduct until political interference ceases.
Civil and criminal disputes are frequently resolved extrajudicially. The use of summary and mob justice is widespread, particularly in rural areas, and police are often complicit or reluctant to intervene. Citizens tend to ignore the law in favor of less transparent patronage systems, especially the intervention of senior officials. Court officials and the police often pressure victims to settle disputes extrajudicially. Both state and nonstate actors enjoy impunity across all areas of law. Public officials, as well as ruling party actors and members of their families, are seldom brought before the courts.
Legally, trials are public and defendants have the right to be present, to consult with a lawyer, to question witnesses, and to bring witnesses and evidence before the courts. Cambodians are also constitutionally entitled to the presumption of innocence and the right of appeal. In practice, however, investigative and trial procedures are generally well below international standards. Shaped by its Vietnamese/Soviet predecessor, the trial system is characterized by a high conviction rate and forced confessions. Defendants are often detained without warrants and denied prompt trial. Investigative procedures tend to be deeply flawed, and trials usually lack adequate evidence or cross-examination. The right of presumption of innocence is routinely violated; judges often predetermine trial outcomes after consultation with the Ministry of Justice or provincial authorities, the capacity of a defendant to bribe judges being a key determinant of the verdict. There is no effort to ensure that evidence obtained through torture is inadmissible, and defendants are often tried in absentia.24
Police and prison officials frequently deny defendants access to legal representation. As there is no state legal aid program and the majority of citizens cannot afford legal representation, citizens routinely appear in court without counsel.25 Illiterate defendants are often not informed of the content of the written confessions they have signed. NGO-funded legal aid has helped improve access to legal counsel and acquittal rates for the poor.
The National Assembly ratified the Khmer Rouge Tribunal Law in October 2004, establishing a special mixed tribunal comprising a majority of Cambodian and a minority of international judges. Funding remains an issue, as does the question of whether the tribunal will deliver just outcomes and adequately protect victims and witnesses.
Although the national police and armed forces fall nominally under civilian control, the state lacks the institutional capacity or political will to exercise that control. The armed forces exert excessive influence over politics, the economy, and state policy and are the most powerful authority in many rural areas.26 Creditable progress has been made toward demobilization, but trust-building and employment creation remain key issues.
Military and police personnel enjoy widespread impunity, although there have been some convictions for political killings in recent years. In cases involving military personnel heard within the civilian court system, military officers have pressured judges to release defendants without trial. The military court system is partisan and poorly resourced. There is no independent authority to investigate complaints against the police.
Insecurity of land tenure has been a major source of conflict since forced collectivization under the Khmer Rouge. Around 75 percent of Cambodia's land area is technically managed by the state, including most natural resources and large agricultural properties.27 Much of this is outsourced through concessions to private companies. This, combined with land grabbing by powerful military and local officials, has displaced the poor and exacerbated conflict between villagers and state actors in rural areas.
Recognizing the scale of the problem, the government has made progress in developing a sound resource management policy, including the passage of a Land Law in 2001 and the suspension of some concessions pending a more effective concessions policy. As ever, substantive progress depends on strengthening responsible institutions. Key subsidiary regulations to implement the Land Law have not yet been adopted, including any on collective land titling and indigenous status. Illegal logging and the misuse of state resources have continued. The courts remain largely unable to enforce land rights, with disputes subject to political interventions, particularly when military or police are involved. In August 2005, for example, the courts dismissed charges against some 120 police and military officers implicated in the deaths of five villagers in Bantay Meanchey Province during a forced land eviction.
The establishment in 2002 of cadastral commissions to conciliate land disputes at local, provincial, and national levels was an important step toward reconciling conflicts outside the courts. With donor technical assistance, the commissions are just beginning to function, but concerns remain about their interpretation of jurisdiction and about the ability of poor families without documentation to prevail over powerful opponents.
- The executive must commit to ending interference in judicial affairs. Strong leadership is required at the highest levels, including the Ministry of Justice, the Supreme Council of Magistracy, and the Supreme Court.
- The government should upgrade the legal framework by enacting the draft penal code, code on criminal procedure, civil code, and code on civil procedure, as well as subsidiary regulations.
- The government should reform the SCM to ensure its independence. In particular, it should ensure that the Ministry of Justice does not participate in decisions relating to the dismissal or reassignment of judges and that council members are not affiliated to political parties. The SCM should be funded adequately.
- Judicial corruption must be addressed, including through the establishment of an independent anticorruption commission; support for independent monitoring of the judiciary; improved transparency of criminal processes including the mandated presence of lawyers for the accused and the prohibition of trial judges' reviewing evidence prior to trials; and improved personal security and adequate remuneration for judges and prosecutors.
- Access to justice should be improved through the establishment of a state-funded legal aid program.
Anticorruption and Transparency – 2.46
Corruption drains off an estimated 10 percent of Cambodia's gross domestic product.28 It is a way of life in business and for state agents, notably the judiciary, customs and business licensing officials, the police, and the tax authority.29 The ruling party appropriates resources on a massive scale to maintain its dominance over the security forces and state infrastructure.30
Opportunities for state corruption are extensive. The bureaucracy is cumbersome, politicized, and unregulated, while the broader regulatory environment is nontransparent. Cash-based payments systems (as opposed to bank-transfer payments systems, which are easier to track) and the weakness of internal and external accountability mechanisms make the risk of engaging in corruption very low. Civil service salaries are typically less than 20 percent of the living wage, making corruption essential for survival.31
The government has repeatedly committed itself to fighting corruption but has not matched rhetoric with action. The state does not adequately protect against conflicts of interest in public office or the private sector. The constitution prohibits government members from professional involvement in trade or industry and from holding positions in the civil service, and the Common Statute of Civil Servants forbids civil servants to use their positions for personal profit or to manage private enterprises. These prohibitions are not upheld in practice, and provisions for internal sanctions are seldom, if ever, activated. The legislature and executive are not expressly forbidden from using state assets for business or political ventures.
Although the state itself refrains from excessive involvement in the economy, with relatively few government-owned companies or assets, no accountability mechanism exists to check the business interests of members of the government or National Assembly. Officials flagrantly abuse position for commercial privilege. The business interests of the CPP's top clique, for example, are estimated at US$400 million annually.32
Cambodia is not a signatory to the UN Convention Against Corruption. Although the government has been working toward national anticorruption legislation since 1995, a draft anticorruption law is yet to be passed and no anticorruption authority exists. As it currently stands, the draft anticorruption law falls short of international standards. Problems include a weaker definition of corruption, vague requirements for assets declaration, and a failure to prohibit laundering.33 Although at present it is possible to prosecute for corruption under the penal code, the political environment is not supportive of this. Government officials continue to enjoy almost complete impunity for corruption. Some arrests of state officials relating to trafficking have reportedly been made, but the government is not known to have prosecuted any cases of official corruption despite committing itself at the 2002 and 2004 donors' meetings to do so with immediate effect.
Financial disclosure procedures are similarly inadequate. No legislation covers the declaration of assets and liabilities of state officials, nor are there processes for public scrutiny or verification of financial assets. The enactment in 2000 of an Audit Law for external and internal audit arrangements was a key step toward adequate financial management, but scant progress has been made in implementing an effective audit regime, through either external or internal systems. Cambodia's first external audit body, the National Audit Authority (NAA), was created in January 2002. It has its own budget and reports directly to the National Assembly. However, lack of legal infrastructure, experience, and resources have impeded its effectiveness. Senior NAA positions are politicized. The establishment of an ombudsman's office was mooted in the government's 2002 National Poverty Reduction Strategy, but little progress has been observed.
Higher education suffers from pervasive corruption. Schemes to obtain illegal payments for manipulating the deployment and promotion of teachers are common, as are unofficial payments to teachers (who do not receive a living wage), charges for additional lessons that students are pressured to attend, and payments to secure university admission and passing grades on exams. This adversely affects access to education for the poor.34
The judicial system, itself arguably the country's most corrupt institution, offers little recourse for corruption victims to pursue their rights. Although allegations of government corruption – including at the highest levels – receive widespread coverage in the media, there are few avenues by which corruption can be monitored and the government pressured to improve accountability. Anticorruption activists risk persecution, while the National Assembly and Senate are ineffective checks on government performance.
Although gradually improving, public access to government information and public participation in government decision-making processes are poor, and citizens lack effective means to express their preferences to policy makers. Lawmaking and enforcement are generally not transparent. Televised legislative debates have increased the transparency of the legislative process somewhat, but there is no notice and comment period prior to the approval of laws or regulations. Public input is limited to irregular consultations between the government and civil society groups. National Assembly and Senate members seldom receive copies of laws, regulations, or government decisions, further weakening their role in the accountability process. The government has begun periodically publishing and distributing an official gazette of new Cambodian laws and subsidiary regulations, but this has only partly addressed the need for a comprehensive archive of laws.
Cambodia's weak and nontransparent budget process hinders policy implementation and provides extensive opportunities for corruption. Legal and technical deficiencies in the public accounting system make it easy to divert funds illegally. Agencies generally fail to comply with budget law requirements, and funds are seldom disbursed or utilized in accordance with budget plans.35 The National Assembly's Finance and Banking Committee scrutinizes the budget, but it lacks the technical capacity to do a meaningful job and is not public. It is as yet unclear how effective the NAA will be in performing its role. The recent establishment of a public financial management reform committee within the Ministry of Economics and Finance was a positive step but will need to be matched by serious political commitment and practical assistance.
The government has made little progress in implementing and enforcing 1995 legislation on public procurement. Procurement processes are notoriously corrupt, nontransparent, and lacking in effective control procedures. No specific legal penalties exist for procurement-related corruption. The official introduction in 2003 of a requirement for competition in procurement has not yet translated into effective competition or transparency.
Cambodia has no freedom of information law and few established procedures for gaining access to information. Information disclosure is patchy and generally at the discretion of the government. Budget, national account, and other economic and social indicators are available to the public on a regular and timely basis but with variable accuracy.36 Defense and other sensitive information is kept secret and business and corporate information guarded closely.37 Negotiations on key policy decisions are secretive as well.
The 1995 Press Law grants journalists the right to publish accurate official information and right of access to government-held records, albeit subject to national security and other caveats. It does not, however, cover the general public or sanction officials who deny access to information. Ordinary citizens must generally present written requests in person and in many cases experience lengthy or indefinite delays, while journalists rely on personal connections rather than established procedures. Deterred by excessive bureaucracy, the requirement for bribery, illiteracy, and perceptions that the state is impenetrable, citizens rarely attempt to obtain information.
The government enables the legal administration and distribution of foreign assistance, although the distribution of such assistance is susceptible to procurement-related corruption. Aid comprises some 60 percent of the national budget, and the government is therefore heavily dependent on it. This dependence has had a profound effect on Cambodia's political development. Although instrumental in creating an electoral democracy, political institutions, and a civil society, the superficiality of many aspects of the Cambodia political process demonstrate the equally profound limitations of this "donor democracy." Donors have struggled to build real commitment to democratic reform on the part of the Cambodian elite and have in some senses distorted the democratization process. The development of civil society, which in Cambodia owes its very existence to foreign donors, is one such example. Many civil society organizations are not robustly grounded in existing social structures and have experienced both credibility problems due to their close association with the international donor community and dislocation as a result of changing donor agendas. This has affected their already limited ability to channel community concerns and to provide a counterweight to the authority of the state.
- The government should impose stiff anticorruption measures, such as enacting laws on anticorruption, assets declaration, and conflict of interest; establishing an independent anticorruption commission; ensuring the independence of the NAA and strengthening its technical capacity; and establishing an ombudsman's office.
- The civil service needs reform, including increased salaries and extensive education to change entrenched behavior. This could be funded by streamlining the civil service.
- The government should improve parliamentary oversight processes, especially with respect to the capacity of the finance and banking committee to monitor government performance in budget formulation and expenditure.
- Public finance reform must continue, particularly public procurement and budget disbursement and reconciliation procedures. Reform should include a shift from a cash-based to a bank-transfer payments system.
- Access to information needs to be improved, including through enacting freedom of information legislation and strengthening the information infrastructure.
Carolyn Bull is a PhD candidate in Politics at the University of New South Wales.
1 "Cambodia" in Human Development Report 2005 (New York: United Nations Development Program [UNDP], 2005), http://hdr.undp.org/statistics/data/countries.cfm?c=KHM.
2 Steve Heder, "Hun Sen's Consolidation: Death or Beginning of Reform?" Southeast Asian Affairs 2005 (Singapore: Institute of Southeast Asian Affairs, 2005), 114.
3 Caroline Hughes, "Candidate Debates and Equity News: International Support for Democratic Deliberation in Cambodia," Pacific Affairs 78 (Spring 2005): 79.
4 Kingdom of Cambodia: The Killing of Trade Unionist Chea Vichea (London: Amnesty International [AI], AI Index: ASA 23/008/2004, 3 December 2004), http://web.amnesty.org/library/Index/ENGACT230082004?open&of=ENG-KHM.
5 Cambodia at the Crossroads: Strengthening Accountability to Reduce Poverty (Washington, D.C.: World Bank, 2004), 5, http://siteresources.worldbank.org/INTCAMBODIA/Resources/Cover-TOC.pdf.
7 In June 2004, the deputy director of the National Police, General San Phan, said that torture during interrogation was sometimes necessary. He reportedly retracted the statement after a complaint from the UN Special Representative of the Secretary General. See Kingdom of Cambodia: The killing of trade unionist Chea Vichea (AI).
8 2004 UN Commission on Human Rights: Mission: To Promote and Protect Human Rights (AI, AI Index: IOR 41/001/2004, 1 January 2004), http://web.amnesty.org/library/Index/ENGACT400082003?open&of=ENG-KHM.
9 Situation of human rights in Cambodia: Report of the Special Representative of the Secretary-General for Human Rights in Cambodia, Peter Leuprecht (Geneva: UN Commission on Human Rights Economic and Social Committee, E/CN.4/2004/105, 19 December 2003), 3.
10 A Fair Share for Women: Cambodia Gender Assessment. April 2004 (Phnom Penh: UNIFEM, World Bank, ADB, UNDP, DFID/UK and Ministry of Women's and Veteran's Affairs, 2004), 11, http://siteresources.worldbank.org/INTCAMBODIA/Resources/ExecutiveSummar.pdf.
11 Ibid, 6.
12 Ibid, 8.
13 Abigail Schwartz, "Sex trafficking in Cambodia," Columbia Journal of Asian Law 17 (Spring 2004), 410.
14 Quarterly Report, Third Quarter of 2005 (Phnom Penh: UN Office of the High Commissioner for Human Rights Field Office Cambodia, 2005), 7.
15 Cambodia: Trade Unionist's Murder Shows Up Judicial Flaw (AI, AI Index: ASA 23/009/2004, 3 December 2004), http://web.amnesty.org/library/Index/ENGACT230092004?open&of=ENG-KHM.
16 The Special Representative Calls for Continued Investigation into the Murder of Trade Union Leader Chea Vichea and for the Immediate Release of Cheam Channy (Phnom Penh: UN Special Representative of the Secretary-General for Human Rights in Cambodia, 16 August 2005), http://www.ohchr.org/english/press/docs/Leuprecht16august.pdf. See also Quarterly Report, Third Quarter of 2005 (UN Office of the High Commissioner for Human Rights Field Office Cambodia, 2005), 1.
17 Human Rights Overview (HRW, 2005), 3.
18 Kingdom of Cambodia: Urgent Need for Judicial Reform (AI, AI Index: ASA23/004/2002, 19 June 2002).
19 Cambodia: Getting Away with Murder (AI, AI Index ASA 23/010/2004, 22 December 2004), http://web.amnesty.org/library/Index/ENGACT230102004?open&of=ENG-KHM.
20 The Special Representative Calls for Continued Investigation (UN Special Representative of the Secretary-General, 16 August 2005).
21 Kingdom of Cambodia: The Killing of Trade Unionist Chea Vichea (AI, 3 December 2004).
22 Human Rights Overview (HRW, 2005), 2.
23 Cambodia at the Crossroads (World Bank, 2004), 5.
24 Cambodia: Governance Reform Progressing, But Key Efforts are Lagging (Washington, D.C.: U.S. General Accounting Office [GAO], GAO-02-569, June 2002), 8.
25 Situation of Human Rights in Cambodia (UN Commission on Human Rights Economic and Social Committee, 19 December 2003), 10.
26 Sorpong Peou, Intervention and Change in Cambodia: Towards Democracy? (Chiang Mai: Silkworm Books, 2000), 366.
27 Cambodia at the Crossroads (World Bank, 2004), 19.
28 Cambodia: Governance Reform (U.S. GAO, June 2002), 9-10.
29 Cambodia Governance and Corruption Diagnostic: Evidence from Citizen, Enterprise and Public Officials Survey (World Bank, 2000), 5. See also Cambodia at the Crossroads (World Bank, 2004), 4.
30 The Run-Up to Cambodia's 2003 National Assembly Election: Political Expression and Freedom of Assembly Under Assault (HRW, June 2003), 2.
31 Cambodia: Governance Reform (U.S. GAO, June 2002), 10-11.
32 Christopher Gunness, "Cambodia's 'Missing' PM," BBC News/Asia Pacific, 25 July 2003, http://news.bbc.co.uk/1/low/world/asia-pacific/3097393.stm.
33 Christine Nissen, "Cambodia," in Global Corruption Report (Berlin: Transparency International, 2005), 121, http://www.globalcorruptionreport.org/download/english/country_reports_a_j.pdf.
34 "Education" in NGO Statement to the 2004 Consultative Group meeting on Cambodia (Phnom Penh: NGO Forum on Cambodia, 6-7 December 2004), http://www.ngoforum.org.kh/Development/Docs/CG%202004/Education.htm.
35 Clay G. Westcott, ed., Key Governance Issues in Cambodia, Lao PDR, Thailand and Vietnam (Manila: Asian Development Bank, 2001), 9, http://www.adb.org/Documents/Books/Key_Governance_Issues/Chapter_2.pdf.
37 Peter Eng, "Cambodia: Restricted Information in a Semi-democracy," in Sheila Coronel, ed., The Right to Know: Access to Information in Southeast Asia (Manila: Philippine Center for Investigative Journalism, 2001), 43-63.