During the reporting period, the Special Rapporteur addressed a number of communications to the Government on specific cases of concern as outlined below.
On 27 September 2013, a joint urgent appeal was sent with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the rights to freedom of peaceful assembly and of association, the Special Rapporteur on the situation of human rights defenders and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. The appeal concerned the dispersal of a peaceful protest of about 30 individuals on 20 September 2013 and the brutal repression of a group of 25 individuals on 22 September 2013, including women and children, by law enforcement officials. At least 10 people suffered injury. Concerns were expressed that the dispersal of those protests by law enforcement officials infringed to the exercise by protestors of their rights to freedom of peaceful assembly and of opinion and expression.
Another joint urgent appeal was sent on 1 October 2013 with the Chair-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on the promotion and protection of the rights to freedom of opinion and expression, the Special Rapporteur on the rights to freedom of peaceful assembly and of association, the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. The communication addressed the death of Mao Sok Chan and the arrest of at least six individuals on the margins of protests held by CNRP, starting on 15 September 2013, in Phnom Penh. On the evening of 15 September, at the Kbal Thnal Skybridge, a group of rioters opposed police forces, resulting in major clashes. Security forces fired smoke grenades and live ammunition into the crowd. Mao Sok Chan, a bystander returning home from work, was shot and died on the scene. Nine persons were seriously injured. Several individuals, including teenagers, were beaten severely with truncheons by security forces. Subsequently, at least six persons were beaten and arrested, five of whom were allegedly coerced into confessing to participation in the riots. Grave concerns were expressed about the alleged indiscriminate and excessive use of lethal force against civilians, and the arrest and detention of the six individuals who reportedly did not take part in the incident.
On 17 February 2014, a joint allegation letter was sent with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on the situation of human rights defenders. The letter addressed the ban on demonstrations imposed on 4 January 2014, when hundreds of police and military officers cleared the demonstration facilities in Freedom Park in Phnom Penh, just before three days of demonstrations planned and announced by CNRP.
On 28 February 2014, an urgent appeal was sent jointly with the Chair-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the rights to freedom of peaceful assembly and of association, the Special Rapporteur on the situation of human rights defenders, the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. The appeal drew attention to clashes between the security forces and the demonstrators who were calling for an increase in the minimum wage for garment workers which had resulted in at least four deaths3 and several injuries, and the arrest and detention of 23 individuals in protest activities in early January 2014. Concerns were expressed about the alleged indiscriminate and excessive use of force against the protestors, resulting in deaths and injuries, as well as their arbitrary arrest and incommunicado detention. An investigation committee was reported to have been established, although concerns were expressed regarding the independence and legitimacy of the investigation. At the time of drafting, no results had been announced. Further concerns were expressed regarding the physical and psychological integrity of those in detention.
On 20 May 2014, a joint allegation letter was sent with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on the situation of human rights defenders. The letter referred to alleged acts of intimidation and threats against Vann Sophath, a staff member of the Cambodian Center for Human Rights. Concern was expressed at the intimidation and threats of violence targeting Mr. Sophath while carrying out his peaceful work promoting and protecting the rights of the families on the disputed land.
The sole response to these communications to date is a note verbale from the Permanent Mission of Cambodia in Geneva dated 19 February 2014 acknowledging receipt of the allegation letter dated 17 February 2014 and making reference to a press release and Law on Peaceful Demonstration previously issued by the Government.
C. Reform of the judiciary
The report of the Special Rapporteur to the fifteenth session of the Human Rights Council in 2010 focused on the judiciary (A/HRC/15/46). Four years on, the Special Rapporteur has sought to assess the status of implementation of the recommendations contained in that report.
The Special Rapporteur was initially encouraged by the assurances repeated in January 2014 by the Prime Minister that three long-awaited fundamental laws on the judiciary (on the organization of courts, on the status of judges and prosecutors and on the Supreme Council of the Magistracy) would be tabled before Parliament in the near future. The Special Rapporteur was also encouraged by the announcement made to him that the reform would be more ambitious than that aimed for in his recommendations.
However, the Special Rapporteur is deeply concerned that recent attempts at judicial reform have been undertaken without prior public release of the draft laws and without consultations with relevant stakeholders. Despite repeated calls from civil society, development partners and the Special Rapporteur himself,4 the texts of the draft laws were not shared until the day before the National Assembly started to examine them. The Special Rapporteur is not aware of consultations of any kind that were organized on the texts finally submitted to the Council of Ministers or to Parliament. In May and June, the three draft laws were adopted in quick succession, with little debate, by the National Assembly and the Senate, ruled to be constitutional by the Constitutional Council two and a half weeks later, and promulgated into law on 16 July 2014.
The main purpose of the three laws should be to protect and promote the independence of the judiciary. Having examined the texts, the Special Rapporteur is concerned that the laws adopted by Parliament contain certain provisions that are detrimental to the principle of the separation of powers. The laws give the Ministry of Justice undue influence over the court system and the judiciary. In particular, the Minister of Justice remains a member of the Supreme Council of Magistracy and, moreover, will have the prerogative to appoint another member of the Council. The Supreme Council of Magistracy is the guardian of the independence of the judiciary in that it decides on all issues related to the appointment, transfer and promotion of judges. The Supreme Council also receives complaints and takes disciplinary actions against judges. The executive should have no role to play in such matters. In addition, the Special Rapporteur had previously recommended that judges and prosecutors should not be active members of a political party (A/HRC/15/46, para. 67) and had hoped that the law on the status of judges and prosecutors would spell out a requirement to that effect much more explicitly.
The Special Rapporteur is most concerned that the Law on the Status of Judges and Prosecutors will ultimately inhibit the ability of the justice sector to reform from within by requiring prior approval from the Supreme Council of Magistracy before a judge or a prosecutor can publicly express himself or herself on issues related to their work. While judges and prosecutors should clearly not comment on the cases before them, they should not be prevented from contributing to debates on matters of public interest relating to the law, the administration of justice and the judiciary.
The Special Rapporteur, however, also acknowledges some positive advances in the three laws. He recognizes the value of establishing regional appeals courts and of the inclusion of a higher proportion of elected judges and prosecutors to serve on a full-time basis on the Supreme Council of the Magistracy than is the case at present. Recalling that two of the three laws were envisaged in the 1993 Constitution, he welcomes their long-overdue adoption, despite the flaws outlined above. Setting out in binding law the requirements for the organization of courts, the status of judges and prosecutors, as well as the composition and operation of the Supreme Council of the Magistracy, the laws will serve to fill an important legal void.
The performance of the judiciary in practice demonstrates that there is a long way to go. In the case of the seven CNRP Members of Parliament elect and one supporter who were arrested in relation to the incident of 15 July 2014, the lack of material evidence needed for their arrests on very serious charges and their speedy release on the evening of the successful negotiations between the two parties on 22 July clearly reveal the extent to which the judiciary continues to be influenced by the executive. This experience demonstrates the urgency of the task of implementing and improving the three laws so that the judiciary will finally be able to serve its intended purpose: to render justice in an independent and impartial manner.
D. Reform of Parliament
In his 2011 report to the eighteenth session of the Human Rights Council (A/HRC/18/46), the Special Rapporteur outlined a series of measures relating to the Parliament that he considered critical for the process of democratization in the country. Many of them concerned specific matters that directly impact on the ability of the Parliament to function properly, to enact laws that promote and protect human rights, to be accessible to its diverse constituency and to be a model for society in promoting a culture of constructive criticism and popular participation. The Special Rapporteur is of the view that speedy parliamentary reform is also essential to enable the opposition to formally play a meaningful role as an opposition in Parliament. He looks forward to seeing a specific reform plan agreed upon by the two parties being made public as soon as possible.
The Special Rapporteur reiterated his main recommendations for parliamentary reform during his mission in June 2014 and called upon Parliament to henceforth be more transparent and open to consultations as part of its work. Specifically, he called on the parliamentary commissions to assume their roles in reviewing the compliance of domestic laws with international standards and regularly review government regulations and practices against the original laws to which they were intended to give effect.
Several draft laws with potentially profound implications for democratic expression and participation are reportedly in various stages of elaboration, including on associations and non-governmental organizations, on trade unions and on cybercrime, in addition to the much-awaited laws by which electoral and other reforms will eventually be enacted. The Special Rapporteur once again calls on the Government and Parliament to ensure openness and transparency in the legislative process.
The subject of the Special Rapporteur’s report to the twenty-first session of the Human Rights Council (A/HRC/21/63) was on electoral reform. Regrettably, most of the recommendations contained therein were not implemented before July 2013 elections. The National Election Committee announced that 9.67 million Cambodians would be eligible to cast their ballots in 19,009 polling stations to elect the 123-seat parliament by proportional representation. The elections were contested by eight political parties. Only two parties won seats, the ruling Cambodian People’s Party, and the opposition CNRP. They were closely contested elections, with conflicting claims as to which party won the largest share of votes, and thus seats in the National Assembly, giving rise to a dispute concerning alleged irregularities during the elections which lasted for nearly one year.
With the two winning parties having found a way to assume their seats in the National Assembly and discuss their differences there, the Special Rapporteur notes that priority will be placed on thoroughly reforming the electoral system to ensure that the next elections will not be marred by similar disputes. He is pleased that his recommendations on electoral reform have now become part of the national agenda, including that of according an independent institutional status to the National Election Committee. However, the Special Rapporteur stresses that there remains a great deal to be achieved before the public can regain confidence in the electoral system.
F. Land rights
Regarding the recommendations in the report on economic and other land concessions submitted to the twenty-first session of the Human Rights Council in 2012 (A/HRC/21/63/Add.1), the Special Rapporteur notes the positive developments resulting from the private land-titling programme of the Government led by the Prime Minister himself. In particular, he welcomes the land-titling programme undertaken under directive No. 001, which was designed to provide tenure security for marginalized and vulnerable communities, as well as the halt in granting new economic land concessions and the review of existing economic land concessions provided for under the Government’s order No. 01 of the Government. He further welcomed the progress made by the Government in developing policy relating to land and housing rights, including drafting the National Housing Policy, a white paper on land policy and a draft environmental impact assessment law.
The Special Rapporteur notes with appreciation the information received from the Minister of Land Management, Urban Planning and Construction, Im Chhun Lim, with whom he met during his visit to the country in June 2014, according to which, some 3.5 million titles had been issued and some 180,000 parcels of land were being processed. The Special Rapporteur welcomed the adoption on 9 May 2014 of the long-awaited National Housing Policy, by which a process for the allocation of social housing was established and whose implementation he will observe with great attention. He also noted with satisfaction the significant attention given to land and housing rights issues in Cambodia in the National Strategic Development Plan 2014–2018. He has furthermore been made aware of and welcomed the initiatives of several authorities at the municipal and provincial levels to involve affected families and communities in local land management decisions, including decisions on resettlement. He is encouraged by the information he received concerning the land reform efforts being undertaken under the leadership of the new Minister of the Environment, Say Samal, including the retraction of some land concessions that were not developed according to plan. The Special Rapporteur notes with satisfaction the Minister’s reported openness to working with civil society and other partners.
Despite the assurances that the land policies were being executed in full accordance with the law, the Special Rapporteur continued to receive large numbers of petitions from individuals and families describing being victim to forced eviction. While the recent policies and plans hold promise for a resolution to land disputes, they have, to date, been plagued by a serious lack of transparency, accountability and the absence of an effective dispute resolution mechanism.
The information brought to the attention of the Special Rapporteur concerning the cadastral commissions and the National Authority for Land Dispute Resolution from across the country consistently points to a lack of effectiveness, impartiality and credibility; he has been unable to find a single study that indicates the contrary. The National Authority has proven to be largely ineffective in settling land disputes. Although its composition should also include non-governmental organizations, civil society groups have declined to participate due to a lack of faith in the institution’s independence and effectiveness. The Government and the judiciary are often unwilling or unable to regulate the conduct of private enterprises involved in the agribusiness and fail to provide redress for violations committed by private enterprises. Many cases submitted to the courts by victims of forced evictions remain unheard years after complaints were originally filed. The continued nexus between powerful business elites, political figures and the military, combined with the absence of an independent judicial system and ineffective dispute resolution mechanisms, continues to deny many ordinary Cambodians redress for violations of their fundamental rights or judicious settlement of disputes.
Notwithstanding the great efforts of the Government to address land disputes, and without prejudice to the merits of the claims, the scale of the problem and the tremendous underlying sense of injustice, anger and desperation expressed by affected persons to the Special Rapporteur underscore the need for an independent institution empowered to resolve land disputes on the basis of a reasoned historical review of the circumstances of each individual, family, or community claiming unfair treatment and resolution of their plight. The blanket dismissal of many such claims on the grounds that people are simply illegally occupying State land or the land of others fails to address the claims of many that they were forcibly evicted on earlier occasions, leaving them little choice but to move elsewhere, whether legally or illegally. It also contravenes the human right to adequate housing, which belongs to all persons, including illegal occupants of land.
The Special Rapporteur is of the view that nearly all the recommendations presented in his report on land rights continue to be relevant and calls upon the Government to once again review them with a view to implementing them. The Special Rapporteur supports maintaining the moratorium on new economic land concessions until a sound policy that addresses the human rights impact of such concessions is properly implemented. He also stresses the need to ensure that resettlement sites be fully prepared for human habitation before persons are relocated there, including by ensuring the availability of clean water, sanitation facilities, health and education services, and opportunities for earning a livelihood. Too many relocation sites, including those visited during his last mission in June 2014, reveal little or no such preparations even years after relocation took place. He draws attention to the relevant international standards in that regard and calls upon all levels of Government to abide by them scrupulously.
G. Emerging issues
Over the reporting period, the Special Rapporteur learned of various incidents and many public pronouncements that appear to have been motivated by racial factors. He is concerned by the undertone of anti-Vietnamese rhetoric in particular, which appears to have some resonance in society, fuelled by widely held beliefs about historical events. In a press statement issued on 16 January 2014,5 he reiterated his call on the opposition party to refrain from making pronouncements that enflame such sentiments.
The Special Rapporteur reiterates his concern about anti-Vietnamese racism, which periodically results in attacks against persons thought to be ethnic Vietnamese. He recalled that most of the few acts of violence or high tensions on the day of the elections in 2013, such as the brutal mob attack against one man in the Steung Meanchey district of Phnom Penh and ethnic Vietnamese being physically prevented from casting their votes in Sa Ang district, Troeuy Sla Commune, in Kandal Province, were motivated by such racism. The Special Rapporteur also recalls that, on 3 January 2014, at the scene of violent clashes earlier that day near Veng Sreng road, several ethnic Vietnamese-owned establishments were reportedly attacked and looted. He calls upon all those in positions of leadership to lead the way in promoting racial harmony and mutual understanding and on all Cambodians to refrain from treating others with violence for any reason, particularly for reasons based on race.
2. Returning migrant workers from Thailand
During his mission in June 2014, the Special Rapporteur was alerted to the return during the preceding days of over 225,000 Cambodian migrant workers and their families from Thailand in less than two weeks, and the reports of several deaths in the process. He commended the prompt efforts by the Government of Cambodia, at both national and subnational levels, to transport people from the border areas back to their communities and to assist the returnees in the process reintegrating at home and obtaining legal re-entry into Thailand for those that seek it.
The Special Rapporteur expressed his view that the Thai authorities should investigate the reported deaths of the Cambodians in Thailand and ascertain the reasons behind the sudden return of such large numbers of Cambodians. He also called on the Thai authorities to similarly investigate another concern, namely the deaths of Cambodian loggers over recent years.
He notes the efforts of both Governments to facilitate the legal return to Thailand of the migrant workers who wish to do so in such a way as to better protect them against trafficking and other human rights abuses. He commended the specific measures taken to regularize the legal status of workers who wish to go abroad, which included reducing the costs of obtaining new passports and facilitating their issuance.
While other measures, such as the promotion of employment opportunities in Cambodia and the provision of vocational training to that end, appear to be measures for the longer term, he encouraged their implementation without delay to benefit those who may not wish to seek work abroad again.
3. Relocation of refugees
The Special Rapporteur was informed by some civil society organizations about an imminent agreement between the Governments of Cambodia and Australia for Cambodia to receive refugees who aimed to claim asylum in Australia, but were intercepted by Australian authorities, then transferred, detained and processed in Nauru. He stresses that Australia, as a party to the Convention relating to the Status of Refugees of 1951 and the Protocol thereto of 1967, recognizes the right of persons to seek asylum from persecution in another country. In accordance with the 1951 Convention, asylum seekers should in principle have their claims processed in the country in which they arrive, or in procedures within the territory of the intercepting State. If found to be refugees, they should be offered protection there with the full rights under the Convention. Therefore, transferring its duties to another country, if that is the object and purpose of an agreement, could be a serious abdication of the responsibilities of Australia, particularly if it does not ensure that the accepting country meets essential protection standards. This is more so the case if the plan is to relocate them to a country for which the absorption of refugees may pose a far greater challenge than for the transferring country. Cambodia, while also a party to the Convention, is not on equal footing with Australia in terms of rights, opportunities and international standards of integration. Moreover, as past experience shows with the treatment meted out to Uighur asylum seekers from China, refoulement is not impossible.
The Special Rapporteur regrets that he was unable to hear the views of the Government of Cambodia about the issue owing to the unavailability of the Minister of Foreign Affairs and International Cooperation during his last visit. As the work on a bilateral agreement with Australia is reportedly advancing quickly, he takes the opportunity to remind both Governments that before any agreement is concluded and refugees are transferred to Cambodia, the latter must be prepared to offer refugees the opportunity to rebuild their lives in safety and dignity. States that do not have essential services in place are not ready to offer refugees a permanent solution through relocation.
In order to fully guarantee the rights under the 1951 Convention in law and practice, a sustainable relocation programme requires a solid legislative and policy foundation providing, among other things, permanent settlement for refugees and the opportunity for citizenship. Any relocation agreement needs to be put into practice by an adequately resourced integration programme which will provide the services and support needed by refugees to adjust to a new society. Integration programmes should include reception of refugees, accommodation, language training, education, vocational training, employment, health care and support for family reunification.
Cambodia has obligations to put such a programme in place irrespective of any agreement with another country, and should demonstrate that a programme is functional before entering into such an agreement.
The Special Rapporteur takes the opportunity to call upon Australia to abide by its obligations under the Convention to offer refugees the opportunity to rebuild their lives in safety and dignity, rather than export that responsibility to another country.