An opinion piece by Kingsley Abbott, ICJ International Legal Adviser on Southeast Asia.
Before the Cambodian Government launches fresh investigations into garment factory union leaders it must address the shortcomings I observed in the last round of trials.
The clear violations of a right to a fair trial that took place during those proceedings left me troubled about the treatment of the accused and the state of the rule of law in Cambodia – a feeling that has since been aggravated by the recent passage of three “judicial reform laws” that infringe on the independence of the judiciary, in contravention of international standards and Cambodia’s constitution.
At first glance the Phnom Penh Municipal Courtlooked like a regular courthouse: a judge sat elevated on a wooden bench. The lawyers wore the appropriate robes and everyone was required to stand when the Judge entered the room.
By the end of the day, though, it was clear that the process was a pretense and the accuseds’ convictions a foregone conclusion.
I was in Cambodia in May on behalf of the ICJ to observe a day of the trials I had been following closely of 24 men and one boy arrested between November 2013 and January 2014 in connection with labor strikes and garment factory workers’ protests in Phnom Penh, seeking a higher minimum wage.
The Government’s response was uncompromising. Gendarmes used live ammunition and tear gas against the protestors, killing four and injuring nearly 40 more.
The four men who were killed were all factory workers aged between 24 and 26. Three of them were married with young families.
On 30 May, after several hearing days, all 25 were convicted in three separate trials of various crimes including intentional acts of violence with aggravating circumstances, and intentional damage with aggravating circumstances – and all were sentenced to suspended terms of imprisonment.
For the 22 who were still in detention, the suspended sentences resulted in their release from custody, so long as they do not commit another felony or misdemeanour within five years.
Four activists and human rights defenders affiliated with NGOs and labour rights movements received the longest sentences and were fined approximately USD $2,000 each – a significant sum of money when you consider that the protestors had been seeking an increase to their USD $80.00 monthly minimum wage.
In Courtroom 3, where one of the three trials was taking place, two youths were in the dock.
The first, a boy of 14, had been certified by a doctor to be “intellectually disabled”, but the prosecutor still argued that he was fit to stand trial.
His very presence in the courtroom, being tried as an adult, was a violation of international law, which requires that every person under the age of 18 years who is accused of a crime be treated in accordance with the rules of juvenile justice, which emphasizes treatment and procedures that not only respect the rights of children but also take into account their age and promotes their reintegration into society.
The other youth, a 19-year-old, was dressed in an orange boilersuit that said “guilty person” in Khmer on the back, notwithstanding that his responsibility for any crime had yet to be determined.
Of course, this violated his fundamental right to be presumed innocent until proven guilty, one of the minimum requirements for a fair trial set out in the International Covenant on Civil and Political Rights, which the Cambodian authorities are bound to respect.
The older youth’s lawyers asked to play a video of the protest that they argued would show that the authorities had arrested the wrong person.
The Judge refused, saying that the prosecutor had already played a video and that showing another might cause a disturbance in the court.
This uneven treatment of the defence and the prosecution, particularly with respect to evidence that the lawyers claimed to be proof of the accused’s innocence, violated the principle of the equality of arms between parties to a case.
This principle takes into account the power and resources of the state against an accused individual and requires that the law and the courts ensure that the defence can prepare and present its case on equal footing with the prosecution.
The scene in Courtroom 2 was worse. On trial were 13 men who had been arrested in Veng Sreng during the protests of 2 and 3 January.
All of the accused were wearing the orange boiler suits that labelled them ‘guilty’.
There was a pattern to the questioning. The Judge would begin by asking each accused “if you didn’t do anything, why did the police arrest you? To which the prosecutor would rejoin “do you have any evidence to prove you didn’t join the protests?”
These questions turned the right to the presumption of innocence on its head.
By the end of the day (and by the end of the trial), no eye-witnesses had been called to say they saw the accused commiting any crimes, and no video evidence had been played showing them participating in the protests.
The ‘victims’ seeking monetary compensation from the accused, all members of the authorities who had responded to the protests, could not say who had thrown whatever object had allegedly struck them.
In some cases, the only evidence presented against the men were statements they had allegedly made to the authorities.
In every case, the men claimed to have been beaten by the military or gendarmes before their interrogation.
The use of statements elicited as a result of torture or other ill-treatment violates international law, and the fact that the court accepted these statements as evidence, without inquiry about their voluntariness, was another serious violation of the accuseds’ rights.
Later, as observers of the different courtrooms compared notes, it was clear that the trial in Courtroom 1 was no fairer, and may have been even worse, as the Judge showed open hostility towards the accused.
Many welcomed the suspended sentences handed down to the accused because they resulted in their release from custody.
But the fact that they were convicted in unfair proceedings on the basis of evidence that appeared to be either insufficient or obtained as a result of ill-treatment is inexcusable.
A conviction in the absence of sufficient evidence, following a process that fails to respect fair trial rights, is a miscarriage of justice and an anathema to the rule of law.