Misuse of law will do long-term damage to Cambodia

An opinion piece by Kingsley Abbott, ICJ Senior Legal Adviser in Bangkok, Thailand.

Over recent decades, international observers have tended to view the human rights and political situation in Cambodia as a series of predictable cycles that does not warrant too much alarm.

The conventional wisdom has been that Prime Minister Hun Sen and his government routinely tightens their grip on the political opposition and civil society in advance of elections before relaxing it again after victory has been secured.

But that analysis is no longer valid.

The reason is simple: During the course of ensuring it will win the national election scheduled for this Sunday (29 July), Hun Sen’s ruling Cambodian People’s Party (CPP) has, since the last election, systematically altered the country’s constitutional and legal framework – and these changes will remain in place after the election has passed.

Through the passage of a slew of new laws and legal amendments inconsistent with Cambodia’s obligations under international law, and the frequent implementation of the law to violate human rights, the legal system has been weaponized to overwhelm and defeat the real and perceived opponents of the CPP, including the political opposition, the media, civil society, human rights defenders and ordinary citizens.

This misuse of the law is a significant development in the history of modern Cambodia and represents a determined move away from the vision enshrined in the historic 1991 Paris Peace Agreements that ended years of conflict and sought to establish a peaceful and democratic Cambodia founded on respect for human rights and the rule of law.

And it risks cementing the human rights and rule of law crisis that now exists within Cambodia for years to come.

To facilitate the closure of civil society space, and contrary to international law and standards, in 2015 the Law on Associations and Non-Governmental Organizations (LANGO) was passed, which requires the mandatory registration of all NGOs and Associations, provides the government with arbitrary powers to deny or revoke registration, and places a vaguely worded duty on NGOs and associations to “maintain their neutrality towards political parties”.

The biggest blow to the political opposition has been the amendment last year of the Law on Political Parties (1997), amended twice within four months, which empowers the Supreme Court to dissolve parties, and four election laws, which permits the redistribution of a dissolved party’s seats in the country’s senate, national assembly, and commune and district councils.

Last November, the Supreme Court, presided over by a high-ranking member of the CPP, used the amended Law on Political Parties to dissolve the main opposition party, the Cambodia National Rescue Party (CNRP), which had received just under 44% of the vote – or about 3 million votes – in communal elections held in June 2017.

After the CNRP’s dissolution, the amended election laws were then used to redistribute CNRP seats at every level of government, from the commune to the senate, to the CPP and minor parties.

To silence the media, the country’s media and taxation laws have been invoked – local radio stations have been ordered to stop broadcasting Radio Free Asia and Voice of America “in order to uphold the law on media” and the independent Cambodia Daily was forced to close after being presented with a disputed US $6.3 million tax bill which the Daily claimed was “politically motivated” and not accompanied by a proper audit or good faith negotiations.

To curb the exercise of freedom of expression, the Constitution has received vaguely worded amendments placing an obligation on Cambodian citizens to “primarily uphold the national interest” while prohibiting them from “conducting any activities which either directly or indirectly affect the interests of the Kingdom of Cambodia and of Khmer Citizens”.

Meanwhile individual journalists, members of the political opposition including the CNRP’s leader, Kem Sokha, human rights defenders and an Australian documentary filmmaker have been charged with any number of a kaleidoscope of crimes ranging from intentional violence and criminal defamation to treason and espionage.

And Cambodia lacks an independent and impartial judiciary.

In 2014, three “judicial reform laws” were passed which institutionalized the prosecution and judiciary’s lack of independence from the executive.

At the same time, the government perversely uses the doctrine of the “rule of law” to justify its actions.

Just hours after the Supreme Court dissolved the CNRP, Hun Sen announced that the decision was made “in accordance with the rule of law.”

When members of the diplomatic community and senior UN officials meet government officials to express concern at the increasing misuse of the law they receive an absurdist legal lecture on the “importance of the rule of law”.

What is happening in Cambodia is the opposite of that.

The International Commission of Jurists, UN authorities and others have been defining the rule of law since the Universal Declaration of Human Rights was pronounced in 1948.

All agree that that the rule of law entails passing and implementing laws consistent with a country’s international human rights obligations.

It is time for the international community to recognize that a frank and fresh analysis of the situation in Cambodia is urgently required which acknowledges the way the country’s underlying legal and constitutional framework has been deliberately altered, and the way in which this will impact the country adversely long past this month’s election.

This acknowledgment must be accompanied by a coherent and, where possible, joint, plan of action that clearly sets out, with a timeline, what is required to bring Cambodia back on track with the agreed terms of the Paris Peace Agreements – including necessary legal and justice sector reforms – and the political and economic consequences for not doing so.

As long as Hun Sen’s Government deploys increasingly sophisticated justifications for its repressive actions, a more refined, multilayered and vigorous response from the international community is required – grounded on a proper application of the rule of law and Cambodia’s international human rights obligations.