Dr Lao Mong Hay, Senior Researcher, Asian Human Rights Commission, Hong Kong
At the end of May 1997, the London-based environmental organization Global Witness published a report in which it held a “kleptocratic elite” close to Cambodian Prime Minister Hun Sen responsible for illegal logging. A week later, instead of addressing the issues that had been raised, the Cambodian government simply banned all national media from publishing any extract from the report, and Hun Neng, Hun Sen’s brother and provincial governor, was quoted as saying that “if [Global Witness staff] come to Cambodia I will hit them until their heads are broken”.
Almost at the same time Supreme Buddhist Patriarch Tep Vong defrocked the abbot of a monastery, Tim Sakhorn, without due process as required in the Buddhist monastic code for disciplining monks. According to the code an accused monk can defend himself before a community or committee of his peers. Without citing any evidence, Tep claimed that Sakhorn’s “conduct was contrary to Buddhist discipline” and his misconduct impaired relations between Cambodia and Vietnam. He alleged that Sakhorn had been using the monastery for “propaganda” against Vietnam, a country with which the Cambodian government has close links.
Upon his defrocking, Sakhorn was taken away in an unmarked car and deported to Vietnam, his country of origin. He was deported without due process of law to investigate his alleged wrongdoings, in flagrant violation of his rights as a Cambodian citizen. Since this incident, the abbot has disappeared.
The drastic and arbitrary measures against Global Witness and Tim Sakhorn are but the latest developments in the history of extremism that runs deep in the political culture of present and past regimes in Cambodia. In 2006, Hun Sen refused to see Professor Yash Ghai, the UN special representative for human
This article consists of the edited text from a series of weekly commentaries, entitled Rule by Fear, written for UPI Asia Online. All of the original columns, and others, can be read on the UPI website: www.upiasiaonline.com/ human_rights.
A few months earlier, alarmed by the extent of land-grabbing and the prospect of a “peasant revolution”, Hun Sen declared a “war against land-grabbers”. This issue could have been addressed through due process of law if the courts and other competent institutions were independent and functional. That they are not is again due in large part to Hun Sen, who in 2004 introduced an “iron fist” policy, supposedly aimed at ridding the judiciary of corruption, under which a few judges and other judicial officers were tried. However, they were acquitted for lack of evidence. This drastic measure followed his 1999 order to rearrest people released by the courts in defiance of the principle of res judicata, i.e., double jeopardy. No remedies have been proposed to correct such arbitrary use of the justice system for political purposes.
In March 1997, Sam Rainsy, currently the opposition leader, staged a peaceful demonstration against the “communist judiciary” together with some followers. The government did not like their action, and four grenades were thrown at the demonstrators, killing 19 protestors and injuring more than 100. In July of the same year, the two ruling coalition parties at the time, the Cambodian People’s Party and FUNCINPEC, whose power- sharing relations had been tenuous, resorted to arms to fight each other in the streets of Phnom Penh, resulting in the annihilation of FUNCINPEC as a political force, despite their earlier pledges under oath not to resort to force to settle disputes.
Extremism was also the hallmark of previous regimes. Prince Sihanouk, when he was head of state in the 1960s, suddenly decided to nationalize the banking and other important sectors of the economy following a scandal in which the government lost a substantial deposit. At the same time, he cut off diplomatic ties with the United States and refused to receive its substantial aid package. All these measures and others eventually led the country into turmoil and to Sihanouk’s downfall.
In 1970, General Lon Nol resorted to force, instead of peaceful means, to rid the country of the sanctuaries and bases of communist Vietnamese forces in the border regions, thereby engulfing the country in the Vietnam War. He also made a drastic decision to overthrow Sihanouk and the monarchy.
The Khmer Rouge emerged as the victors of that war in 1975, communist rulers who went to even much greater extremes. They were not happy with Cambodia’s feudal, corrupt and unjust society and rushed to destroy it. They were not happy with townsfolk and were not able to feed them. They thus forced them to the countryside at gunpoint to till the land and grow their own food until death. They said that money was corrupting and abolished it, as they did with anyone or anything with which they were dissatisfied.
Now Cambodia has swung from extreme communism to capitalism, which, in the absence of the rule of law, has gone to the opposite extreme. In the society destroyed by the Khmer Rouge, the biggest landholding was 132 hectares, and large landholdings were rare. Now Cambodian society has quickly again become a feudal society, but one ruled by a corrupt oligarchy under a democratic cloak, in which the powerful and their cronies own up to tens, or even hundreds of thousands of hectares of land during a time when the population has doubled and landlessness has increased. Cambodia’s countryside today very much resembles the English countryside during the period of enclosure.
Ironically, even Nuon Chea, the Khmer Rouge ideologue now about to face trial for the Killing Field atrocities, has said that the society he and his comrades destroyed was better than the present one.
Stop killing the messenger
The Cambodian delegation to the UN Human Rights Council launched an unprecedented and unwarranted attack on the UN special representative for human rights in Cambodia, Professor Yash Ghai, in Geneva on 12 June 2007. The delegation attempted to dismiss Ghai’s report to the international community, claiming that it focused solely on negative aspects of the country’s situation. The country’s ambassador, Chheang Vun, stated that it no longer accepted Ghai’s mandate and called for a review of his position. In doing so, Cambodia has effectively signaled that it will no longer cooperate with this important UN mechanism that was initiated to further respect for human rights and the rebuilding of the country as a whole, one that was created as the result of international consensus under the Paris Peace Agreements of 1991 that ended the war in Cambodia.
The government’s reaction has raised a lot of concern, as the UN special representative’s report contains many crucial elements that would permit Cambodia to move toward the effective protection and enjoyment of human rights. Ghai is being targeted not because of any actual bias or selectivity in his work—he in fact mentioned several positive developments, including the March 2007 ratification of the optional protocol to the UN Convention against Torture, more peaceful local elections held in April, and the adoption of a new code of criminal procedure— but rather because he has focused on the inconvenient reality of human rights in the country.
Among the main barriers to human rights highlighted in the UN special representative’s report are the lack of an independent judiciary, political repression and detentions, a lack of progress concerning legal reforms, land-grabbing and forced evictions, corruption, the lack of freedom of speech, violations of indigenous people’s land rights and impunity. All of these issues are central themes that concerned local and international organizations repeatedly have raised and are the big hurdles facing the country at the present time.
The Cambodian government’s stance is unacceptable and presages a further degradation of human rights in the country. If the government is now unwilling even to cooperate with the international community’s human rights envoy, it is likely that it will also increasingly clamp down on local activists working in favor of human rights and dealing with the crucial issues raised by the special representative. This may also pave the way for future attacks on the work of the Office of the High Commissioner for Human Rights in Cambodia. Given Cambodia’s horrendous past, from which it is still struggling to emerge, any such signs of increasing authoritarianism and rejection of human rights and international cooperation must be taken very seriously.
The Cambodian government must halt this policy of personal attacks and non-cooperation and instead must engage in dialogue with the UN special representative in order to address the significant human rights problems that plague the country. Countries bound by human rights obligations towards the Cambodian people under the Paris Peace Agreements as well as donors, which include Australia, Canada, Denmark, France, Germany, India, Japan, South Korea, Sweden, the United Kingdom and the United States, must work with the Cambodian government to ensure that this government abandons its current stance and begins to address the country’s pressing human rights issues in good faith, notably by implementing without fail all recommendations made by the special representative. All these countries and the Cambodian government must also ensure the independence of the judiciary, notably by severing judges’ political party affiliations and ensuring the independence of and accessibility to the Supreme Council of the Magistracy, which is responsible for the nomination and discipline of judges, access to justice, an end to land-grabbing and forced evictions and progress in other needed legal and judicial reforms.
Long wait for justice
It is nearly 10 years since the Cambodian government requested UN assistance in organizing the trials of Khmer Rouge officials accused of some 1.7 million deaths during their rule from 1975 to 1979. At the start of June 2007, the 29 judges and prosecutors appointed for the trial met for their second plenary session to review and adopt internal rules for its conduct.
A Cambodian request for an international trial in 1997 met with a negative response from China, the strongest supporter of the Khmer Rouge until the early 1990s. For China the trial was Cambodia’s “internal affair”, and other countries should not interfere. The Cambodian government later changed its mind and opted for a domestic trial, despite its lack of resources and expertise.
While still needing UN assistance to legitimize the trial, the Cambodian government forged ahead with the enactment of its own law on the tribunal. In May 2001 Prime Minister Hun Sen— known for his dislike of the United Nations for its continued recognition of the Khmer Rouge regime from 1979 to 1991, rather than his own Vietnamese-installed government—announced that, barring “further disturbances” from the United Nations, the trials could take place by the end of 2001. But that year came to an end with no Khmer Rouge tribunal in sight.
The United Nations continued to offer cooperation and assistance in setting up a tribunal that would adhere to international norms and standards, which Cambodian courts— under executive control and lacking independence, competence and impartiality—could not ensure. With diplomatic support from concerned countries, in July 2003 the United Nations finally secured a commitment from Phnom Penh to cooperate.
A tribunal was then established to conduct the trial according to Cambodian law, supplemented by international law and practices: a hybrid with two chambers, a trial chamber and a Supreme Court chamber, and with Cambodian judges in the majority in both. Decisions by both chambers are to be made by a “super majority”, including at least one foreign judge on top of all Cambodian judges.
The tribunal has been assigned two co-prosecutors and two co-investigating judges, one of whom in both cases is Cambodian and the other foreign. In cases of disagreement between the co- prosecutors, the prosecution will proceed unless one of them requests the settlement of their differences within 30 days by a pretrial chamber. In case of disagreement between the judges, the investigation will proceed unless one of them requests the settlement of their difference within 30 days by the same pretrial chamber. This chamber is composed of five judges, of whom three are Cambodian, one being the president, and two foreign judges. Decisions of the chamber are to be made by four judges, and there can be no appeal against their decisions. The United Nations nominates the foreign judges and prosecutors who then, like their Cambodian counterparts, are appointed by the Supreme Council of the Magistracy.
In July 2006, three years after the signing of the agreement between the United Nations and Cambodia and nine years after the Cambodian government’s request for assistance with the trial, 29 judges and prosecutors—17 Cambodian and the rest foreign—were sworn in. These judges immediately set out to draft the internal rules for their tribunal. They held a plenary session in November 2006 to review these internal rules but failed to adopt them when Cambodian judges and prosecutors, who are not trained in international criminal justice, toed the government line on the upholding of the sovereignty of Cambodian law and objected to a number of elements of international law and practices incorporated in the internal rules.
The review of the internal rules by the drafting committee continued, but the process was stalled when the Cambodian Bar Association raised strong opposition to the creating of a defence support unit attached to the tribunal, by insisting that the bar and not the unit was responsible for the registration of foreign lawyers, and by imposing on these lawyers exorbitant fees amounting altogether to USD4900 per year. The international judges disagreed with these exorbitant fees and canceled the plenary session on the internal rules scheduled for April 2007. The bar in the end decided to lower the fees for foreign lawyers to USD500. This enabled the resumption of the review and adoption of the internal rules.
Now it seems that after 10 years all major hurdles have been overcome, and the judges and prosecutors have actually met in a generally optimistic mood. The trial should soon be held in accordance with international norms and standards, and end the Cambodian people’s agonizingly long wait for justice.
War against the powerful brings terror to the powerless
Land grabbing has been one of the most serious issues facing Cambodia since it abandoned communist collectivization at the end of the 1980s to embrace a market economy based on private property. In recent years, this problem has become worse as land conflicts have dramatically increased. One non-governmental organization listed 1551 cases between 1991 and 2004, affecting nearly 160,300 families or almost seven per cent of the population. Another gave legal assistance in 335 cases in 2005 and 450 in 2006.
Land grabbing has affected urban dwellers, rural folks and ethnic minorities alike, with the land usually being grabbed by the powerful and the rich backed by senior officials. Using their high position and influence, land-grabbers can secure eviction orders and the enforcement of these orders from the state machinery without going through due process of law and without paying fair and just compensation to evictees.
For instance, in 2006 a powerful company got the Ministry of Interior to force 168 families living in Phnom Penh, whose land the government conceded to that company, to accept average compensation of less than USD20 per square meter of land, while the estimated market price was USD200, and then forcibly evict them. The targeted persons had no choice but to resist and demand fair and just compensation. Force and intimidation were then used against them as the police and military police armed with assault rifles, electric batons and riot shields were sent to break up the resistance, demolish dwellings and force occupants to vacate their land.
Frequent forced evictions have not led to the end of land grabbing, and protests against them and the issue itself have only increased year after year, to such a degree that Prime Minister Hun Sen has repeatedly warned of a “peasant revolution”. In March 2007, he secured full support from his party, the Cambodian People’s Party (CPP), to declare a “war against land-grabbers”, whom he identified as CPP officials and people in power. His remarks were seen as a positive development as the prime minister, with all power centralized in his hands, addressed the issue personally.
Critics have said, however, that this high-profile “war”, staged just weeks before the commune election on April 1, was simply campaign rhetoric. Perhaps it is too soon to give credence to these critics, but this “war” has not earned Hun Sen many victories as yet. Furthermore, it has provided no security to victims of some 2000 cases lodged with the National Authority for the Resolution of Land Disputes.
Moreover, on April 20 Say Hak, the governor of the seaport of Sihanoukville, turned this “war” into terror for 107 families by sending armed police and security personnel to forcibly evict them from their 17 hectares of land for the benefit of Senator Sy Kong Triv, a CPP tycoon. That day Say Hak, together with his deputy, the town prosecutor, the police commissioner and military police commander, led about 100 police and military police officers armed with AK-47 assault rifles, electric batons and tear gas to search for illegal weapons in the homes of these families, as a legal cloak for the eviction.
The families resisted and clashes ensued. The security forces fired shots in the air and into the ground and charged the villagers, using their rifle butts, electric batons and water canons to disperse them. Thirteen men were seriously beaten, and many women were assaulted. A 75-year-old man was so severely beaten and electrocuted that he required hospital treatment. Three members of the security forces were also injured; they arrested 13 villagers for “battery with intent” and “wrongful damage to property”. They are looking for others, and 30 to 40 of them have gone into hiding. Meanwhile, Say Hak has filed a criminal lawsuit against Chhim Savuth, a human rights investigator, for “inciting” the villagers to form a “breakaway zone independent of government rule”. Chhim Savuth has thus also gone into hiding as well.
Say Hak once confided that “it is not difficult to settle land disputes: it is a matter of eliminating one or two gang leaders, and these conflicts will be over”. He does not care about the plight of these 107 families who found that their homes, crops and other belongings, including motorbikes, bicycles, generators, TVs, VCRs, DVDs, clothes, kitchen utensils and domestic animals, were destroyed by fire, tractors and bulldozers. They have been made destitute and are now camping under plastic shelters or trees under monsoon rains and the tropical hot sun on the roadsides along Highway 4 leading to Phnom Penh. They are surviving on relief handouts from humanitarian organizations.
Say Hak has not stopped though. His connivance with land- grabbers continued on May 11 when he issued another order of eviction to 18 families and gave them 20 days to vacate. Knowing his way of ending land disputes, these families face the same terror as those previous 107 families if they defy his order. Hun Sen needs to stop Say Hak’s abuses before other governors turn his “war against land grabbers” into terror against powerless people in other towns and provinces.
Corruption surfaces in housing fiasco
On 31 July 2007, the Cambodian government sent a delegation of officials, ten excavators and over a hundred workers under the protection of armed policemen to reclaim a site that once included Lake Kob Srov. Long Chhin (Cambodia) Investment Ltd. had filled in the lake in order to build a luxurious housing estate, called Long Chhin Resorts, 12 kilometers northwest of Phnom Penh.
The government moved to reclaim the lake site following the expiry of a deadline for the company to dismantle its construction there. The government has claimed that the filling-in of that lake was illegal and that it needed to reclaim the site as the construction work on the estate would block the water flow in the area and cause floods in the capital, Phnom Penh.
In the presence of the government delegation and the company’s representative, the excavators and workers tore down and demolished all construction on the estate, turning it into rubble in three days. The demolished structures included all the brick walls around the estate, all entrance porches, seven two- story apartment blocks, 21 finished villas, eight villas that were still under construction, three guesthouses, a karaoke hall, 10 leisure kiosks, a warehouse, an office building and other amenities.
A number of Cambodians have lost all their investments in the estate, having already bought villas and apartments from the company or made deposits on them. Suppliers of construction materials have also lost the money that the company owed them. The total losses suffered by house buyers and the company’s creditors are estimated to amount to around USD20 million—a huge sum in a poverty-ridden country. Thirty-seven house buyers and creditors have now filed separate suits against the company to get their money back.
The government has promised to help repay them if the company’s assets are insufficient. The chance of them getting their money back from the company is very slim, as its now frozen bank account has a balance of only USD4000 in credit. The owner of the company, Zhu Shi Min, a mainland Chinese man, is believed to have fled Cambodia. Not much can be recovered from the rubble that is left on the estate. It is highly unlikely that the government, which is cash-strapped and corrupt, will live up to its promises and repay those who have lost money. The house buyers and the company’s creditors will themselves have to pay for the corruption in high places that allowed the company to do business in Cambodia, dupe them into buying its houses and supplying construction materials on credit, and also defy its order to dismantle the estate.
In a brochure published in 2005 to attract buyers for its houses and apartments, the company claimed it had purchased the land in that area in 1993, had received authorization for development in the area from Prime Minister Hun Sen and the Cambodia Development Council in 2004, and that Zhu Shi Min had relations with Cambodian and Chinese leaders. As proof, the brochure showed photos of Zhu shaking hands with or standing beside Cambodian leaders, as well as autographs provided by Cambodian and Chinese leaders.
The government has acknowledged that it had given authorization “in principle” for housing development on 28 hectares, “subject to a set of conditions” including the need for the company to get permission from relevant departments and for it not to affect the water flow in the area. However, the government has accused the company of filling in hundreds of hectares of the lake.
Just days before the demolition, the government sacked the governor and two deputy governors of Kandal province as well as the governors of the two districts in which the lake is located for their involvement in the project. Two weeks before the demolition, one of these district governors, Tep Sothy, was quoted by a newspaper as saying that Long Chhin Resorts “had followed the law” and had permission from the government for its construction project.
The government officials who had authorized and supported the development at the lake site, whether in principle or by giving definitive approval to the project, have violated the country’s constitution and its land law, which classify lakes as being inalienable public property. Any such violation is punishable by a fine between five and 50 million riels (around USD1250 and USD12,500) and/or one to five years’ imprisonment. Those responsible should be prosecuted and made to repay the house buyers and creditors.
However, Zhu Shi Min’s disappearance has rendered difficult any public action against the government officials in question. Zhu is the key witness and is also charged with the crimes of fraud and the destruction of public property. It is quite legitimate to suspect that he may have been deliberately helped to “disappear” by those seeking to avoid legal action from being taken against them.
Justice in the dock after flawed trials
In August 2005, two men—Born Samnang and Sok Sam Oeun— were convicted and sentenced to 20 years in prison for the murder of Chea Vichea near a newspaper kiosk in Phnom Penh in January 2004. Chea was the leader of the largest labor union in Cambodia, with 70,000 members, and was a strong supporter of the opposition party that was maneuvering to oust the incumbent prime minister and vice-chairman of the ruling party. Many observers believe that the two men were scapegoats and their conviction was to whitewash the widely suspected government role in the murder.
The Court of Appeals heard the two men’s appeal in April 2007 and pronounced its verdict six days later, on April 12. Early in the morning of that day, 10 minutes before the court officially opened and without waiting for the accused and their lawyers to arrive, Judge Saly Theara, president of a panel of judges, read out the court’s judgment and upheld the sentence of the two men. Like the lower court, its judgment excluded the defense witnesses’ exculpating testimonies in court, including an alibi that Born Samnang had been about 60 kilometers away when the crime was committed. In contrast, none of the prosecution witnesses was brought to either court to testify and be cross- examined by the defense.
Both courts based their judgments on the statements of the two men to the police and on the confession Born Samnang made to the police, prosecutor and investigating judge in the lower court after their arrest. Born retracted his confession during reexamination on the grounds that the police had used threats and intimidation against him and had tried to extort a confession by offering him a position as a police officer. His allegations of police ill treatment and extortion were not investigated. The Court of Appeals also rejected on the grounds of “procedural irregularity” the testimony submitted by one key witness from her place of asylum in Thailand. Va Sothy was the owner of the newspaper kiosk where the men were shot and witnessed the killing itself. She asserted that Born Samnang and Sok Sam Oeun were not the killers and gave a description of the man who shot Chea and his accomplice. The appeals court could have accepted her statement as new evidence and assigned a judge to take a statement directly from her, but did not.
The conviction of Sok Sam Oeun and the decision of the Court of Appeals to uphold it were based on Born Samnang’s statement that Sok Sam Oeun was his accomplice, but Sok Sam Oeun denied this allegation and protested his innocence throughout the whole legal process. In the lower court, following Born Samnang’s retraction of his confession and with due consideration of the evidence gathered by the police and himself, Hing Thirith, the first investigating judge, found no case against the accused and dropped the charges. This judge was immediately disciplined and his decision was reversed. Both trials had many flaws, and the conviction and the appeals court’s decision have aroused indignation. A coalition of 23 Cambodian non-governmental organizations has called both judgments “very unjust and politically biased”, maintaining that neither court was independent and neither made reasonable judgments. Peter Leupretch, UN special envoy for human rights in Cambodia, had earlier denounced the trial by the Phnom Penh Municipal Court and said that the investigations and hearings “lacked credibility”. Professor Yash Ghai, his successor, added that the upholding of the conviction was “a grave injustice”. In addition, the International Trade Union Confederation called the decision a “double travesty of justice”.
The list of flaws in the case would be long and cannot be detailed in full here, but the most serious one was the Court of Appeals’ disregard for the plea made by Pan Kim Heng, the prosecutor, for a reinvestigation on the ground that there were “huge gaps in the police investigation”. He pointed out that the sketch artist for the work circulated by the police had no proper expertise, and that there was no verification of the record of the phone calls said to be made by the accused, no proper autopsy, no proper examination of the scene of the crime and no proper forensic examination of the bullets that killed Chea.
According to Pan Kim Heng, the proposed reinvestigation would lead to the arrest of the “real killers”, and he did not press any charge against the accused. This plea for a reinvestigation by the prosecutor should question, if not destroy, all evidence on which the Court of Appeals based its decision to uphold the conviction of the two men and indeed, the conviction itself.