Cambodia: Spurious “treason” charges against opposition leader Kem Sokha must be dropped

Cambodia: Spurious “treason” charges against opposition leader Kem Sokha must be dropped

Today, following the commencement of the trial of political opposition leader Kem Sokha, the ICJ condemned his continuing legal harassment and called on the Government of Cambodia to drop the ill-founded and apparently politically-motivated charges of treason against him.

“The trial hearing today marks and extends more than two years of legal harassment of one of Cambodia’s most prominent leaders of the political opposition,” said Frederick Rawski, ICJ’s Asia Pacific Director.

“The charges against Kem Sokha are wholly unsubstantiated – They should be dropped, and the trial discontinued in the accordance with his right to fair trial.”

In September 2017, Kem Sokha, leader of the now-defunct main opposition Cambodia National Rescue Party (CNRP), was arrested without warrant by more than 100 police officers in a midnight raid on his home. His arrest, in violation of his parliamentary immunity, was reportedly made on the basis that he had allegedly committed a crime in flagrante delicto – the Prosecution Office of Phnom Penh Municipal Court argued that he had been caught “red-handed” in an act of treason despite the fact that the alleged act was a speech he had made four years earlier in Australia in 2013. In the speech, Sokha had alluded to receiving foreign assistance in advocating for democratic change in Cambodia.

Kem Sokha was thereafter charged with alleged “conspiracy with a foreign power” under article 443 of the Criminal Code, and detained in the remote Trapaing Thlong prison in Tboung Khmum Province near the Vietnamese border. His applications for bail were rejected multiple times before he was released from prison after one year in pre-trial detention. During this period, Sokha was also denied access to independent doctors and medical treatment, despite his suffering from serious medical conditions. In 2017, the courts in Phnom Penh ruled that his pre-trial detention was legal under Cambodian law and refused him bail, even though Sokha had been barred from attending the proceedings, which his lawyers also boycotted in protest.

Kem Sokha’s arrest occurred in the midst of an intense crackdown on political opposition, civil society and independent media in the lead-up to the 2018 general elections. Two months after his arrest, Cambodia’s Supreme Court dissolved the CNRP and banned 118 CNRP officials from political activities for five years. In July 2018, the ruling Cambodian People’s Party won the elections by a landslide.

Following the elections, the Cambodian government has continued to systematically repress and persecute perceived critics of the regime through abuse of legal and judicial processes. In 2019, Cambodian authorities brought apparently politically-motivated charges against more than 100 members of the political opposition, more than half of whom were detained.

“There is an ongoing human rights and rule of law crisis in Cambodia, which needs to be urgently addressed,” said Rawski.

“The dissolution of the CNRP and imprisonment of its leader were crucial indicators that the Cambodian government had crossed a red-line a long time ago.”

The ICJ has called on the Cambodian authorities to fulfill the State’s obligations to protect people’s rights guaranteed under international law, including the rights to free expression, political participation and freedom of association, as well as the right to a fair trial and freedom from arbitrary detention.

To download the full statement with additional background information, click here.

Contact

Frederick Rawski, ICJ Asia and Pacific Regional Director, e: frederick.rawski(a)icj.org

See also

ICJ, ‘Cambodia: Charges against Kem Sokha must be dropped and respect for fundamental freedoms restored’, 14 November 2019

ICJ, ‘Misuse of law will do long-term damage to Cambodia’, 26 July 2018

ICJ, ‘Cambodia: the ICJ condemns dissolution of main opposition party’, 16 November 2017

Thailand: continuing delay in the enactment of the draft law on torture and enforced disappearance undermines access to justice and accountability

Thailand: continuing delay in the enactment of the draft law on torture and enforced disappearance undermines access to justice and accountability

On 20 December 2019, the ICJ submitted recommendations to the Ministry of Justice on the Draft Prevention and Suppression of Torture and Enforced Disappearances Act (“Draft Act”), scheduled for public consultation between 4 and 31 December 2019.

The ICJ also expressed concern at the recurrent delays in the amendment and enactment of this important legislation which will be critical for ensuring accountability and justice for future victims of torture and enforced disappearance.

In October, the Ministry of Justice withdrew the draft Act from the Cabinet “for further revision”, an act which has served to further delaye the passage of essential legislation criminalizing torture and enforced disappearances.

The ICJ also regretted that the latest Draft Act, after several rounds of revisions and public hearings, still has not addressed many of the principal shortcomings which the ICJ and other stakeholders and experts have indicated need necessarily be amended in order to bring the law into line with Thailand’s international human rights obligations, particularly under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”) and the International Covenant on Civil and Political Rights (“ICCPR”).

As it stands, it is also inconsistent with the International Convention for the Protection of All Persons from Enforced Disappearance (“ICPPED”), which Thailand has signed and committed itself to ratify.

The key concerns include:

  • Incomplete definitions of the crimes of torture and enforced disappearance, as well as other key terms discordant with international law;
  • The absence of provisions concerning cruel, inhuman and degrading treatment (CIDT/P);
  • The inadequacy of provisions on the inadmissibility of statements and other information obtained by torture, CIDT/P and enforced disappearances as evidence in legal proceedings;
  • The inadequacy of provisions relating to modes of liability for crimes described in the Draft Act;
  • The inadequacy of provisions concerning safeguards against torture, CIDT/P and enforced disappearances; and
  • The absence of provisions concerning the continuous nature of the crime of enforced disappearance and statute of limitations for torture and enforced disappearance crimes.

Download the recommendations in English and Thai. (PDF)

Further reading

Thailand: ICJ, Amnesty advise changes to proposed legislation on torture and enforced disappearances

Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments

Philippines: court verdict on Ampatuan massacre a step forward for accountability and justice for victims

Philippines: court verdict on Ampatuan massacre a step forward for accountability and justice for victims

The ICJ said that today’s verdict by the Quezon City Regional Trial Court on the “Ampatuan Massacre” is a first step in achieving justice for the victims and their families.

The court found guilty several of the principal accused, including Zaldy Ampatuan, who is a former governor of the Autonomous Region in Muslim Mindanao. The Ampatuan Massacre involved the killing of 58 people, including 32 journalists. It became known as the single deadliest attack against journalists globally.

“The Ampatuan massacre was a human rights tragedy that demonstrated how ingrained impunity has become in Philippine society,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.

She added, “It clearly illustrated how respect for human rights has become a mockery in the Philippines, that it can be casually thwarted by a group of individuals who thought they can get away with the killing of 58 people, including journalists, in broad daylight.”

There are 197 accused named in this case, many of them members of the politically-powerful Ampatuan family. The principal accused, including Zaldy Ampatuan and several of his family members, were sentenced to imprisonment of reclusion perpetua (30 to 40 years) without parole. They were also ordered by the court to compensate the victims of the massacre.

The ICJ urged the Philippine government to use this case to now effectively address the culture of impunity in the country.

“The Philippine government should look to this case and use it more generally as a force for a comprehensive drive against impunity, which has been pervasive in unlawful killings, whether by State or private actors,” said Emerlynne Gil.

Background

On 23 November 2009, Bai Genalyn Mangudadatu, wife of Esmael Mangudadatu, was accompanied by members of her family, lawyers, political supporters, and journalists to file the certificate of candidacy of her husband, Esmael Mangudadatu, for the upcoming elections. They were killed by men who later on were revealed to have been ordered by Andal Ampatuan Sr., Andal Ampatuan Jr., and several other members of the Ampatuan family. The Ampatuan family is the political rival of the Mangudadatus.

The convoy of vehicles accompanying the Mangudadatus was ambushed. Passers-by were also killed by the armed men. Their bodies and vehicles were buried in shallow graves nearby.

There were 58 people killed that day, including 32 journalists who were accompanying the Mangudadatus. This became known as the single deadliest attack against journalists globally.

There were 192 persons named as accused in this case, including members of the Ampatuan family and law enforcement officers who conspired with them.

The trial went on for ten years. On 19 November 2019, Branch 221 of the Regional Trial Court of Quezon City rendered its decision finding guilty beyond reasonable doubt 28 people, including Zaldy Ampatuan, his brother Datu Andal Ampatuan Jr, and several other Ampatuan family members. They were sentenced to reclusion perpetua (30 to 40 years) without parole.

Contact

Emerlynne Gil, Senior International Legal Advisor, International Commission of Jurists, t: +66 8409 235 75, e: emerlynne.gil(a)icj.org

Poland : ICJ calls on Parliament to drop draft law further restricting judicial independence

Poland : ICJ calls on Parliament to drop draft law further restricting judicial independence

The ICJ called today on the Polish House of Representatives (Sejm) to drop a draft law that would put judges at risk of disciplinary action for their interpretation and application of the law, including EU and international law.

The draft law would also mean that judges would face disciplinary penalties for legitimate criticism of judicial reforms.

“The Polish Parliament should reject these proposals which would place intolerable constraints on judges in interpreting and applying the law and would undermine their freedom to speak out on vital issues of judicial independence,” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.

“Elements of the proposals appear designed to prevent judges from fulfilling their obligation under the EU treaties to apply EU law, which is an attack on the independent exercise of their judicial function” she added.

Under the proposals, judges would face disciplinary action and possible dismissal for refusing to apply a legal provision, unless it had been deemed unconstitutional by the Constitutional Tribunal.

This proposal appears to be a direct reaction to a recent decision of the Labour Chamber of the Supreme Court which, applying a ruling of the Court of Justice of the EU, held that the Supreme Court’s Disciplinary Chamber was not an independent court. The Labour Chamber found that that the Disciplinary Chamber is not independent since its judges are appointed by the National Council of the Judiciary (NCJ). Following a recent constitutional reform, the NCJ is composed predominantly of members elected by Parliament and the executive, contrary to international standards on the independence of the judiciary.

New disciplinary offences for judges under the draft law would also include questioning the status of Polish judges, and “political engagement”. Judges would be prohibited from questioning the status of Polish courts or tribunals or constitutional organs. Futhermore, the draft law would prevent judges’ associations from adopting resolutions “expressing hostility towards other powers of the Republic of Poland and its constitutional organs”.

These provisions would hamper judges’ capacity to criticize reforms which have led to questionable judicial appointments by the NCJ and have seriously damaged the independence of the judiciary as a whole. International human rights law and international standards on the judiciary recognise that judges have a right to freedom of expression and that they have a particularly important role in contributing to discussions on issues of the functioning of the judicial system and the rule of law.

Background

On 19 November, the Court of Justice of the European Union (CJEU) delivered a ruling in the case A.K. and others (C-585/18, C-624/18, C-625/18), on a preliminary question by the Supreme Court of Poland. The preliminary question asked whether the recently established Disciplinary and Extraordinary Chambers of the Supreme Court could be considered to be independent.

The CJEU ruled that a court cannot be considered independent  “where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law.”

The UN Basic Principles on the Independence of the Judiciary clarify that all governmental and other institutions must respect and observe the independence of the judiciary (Principle 1), and that judges must decide all matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect (Principle 2). Judges can be subject to suspension or removal only following fair procedures (Principle 17) and only for reasons of incapacity or behaviour that renders them unfit to discharge their duties (Principle 18).

The UN Basic Principles, also affirm the freedom of expression and association of judges (Principle 8) in line with protections under international human rights law, and their right to form and join associations of judges to represent their interests (Principle 9).

In recent years, the Polish executive and legislative authorities have systematically undermined the independence of the judiciary in the country, including through laws that have sought to force the dismissal of judges by lowering the mandatory retirement age. In addition, they have brought the appointment of judges under political control by re-structuring the National Council of the Judiciary (NCJ), with a majority of its members selected by the Polish Parliament.  (see ICJ statement)

This move has also politicized the Disciplinary Chamber of the Supreme Court, whose members are selected by the NCJ, and the disciplinary court of first instance. In October 2019, the European Commission referred Poland to the CJEU on the grounds that the new disciplinary regime for judges undermines their independence.

In June 2019, the Court of Justice of the European Union (CJEU) held that the Polish Law on the Supreme Court lowering the retirement age of judges of the Supreme Court and providing discretionary power to the President to allow a judge to remain in office following the mandatory retirement date was contrary to the principle of effective judicial protection and therefore in violation of EU law. In November 2019, the CJEU held that Poland violated the independence of the judiciary by lowering in 2017 the pension age of Polish judges and giving the power to maintain them in office to the Minister of Justice.

The ICJ has documented, and the UN Special Rapporteur on independence of judges and lawyers has affirmed, that the right of judges to freedom of expression is particularly protected when in situations where the rule of law or constitutional order is under threat, they speak out in defence of the independence of the judiciary.

Contacts:

Róisín Pillay, Director for Europe and Central Asia Proramme, t: +32 2 734 84 46; e: roisin.pillay(a)icj.org
Massimo Frigo, Senior Legal Adviser of the ICJ Europe and Central Asia Programme, t: +41 22 979 3805 ; e: massimo.frigo(a)icj.org

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