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Cambodia: Symbolic Institutions Are No Substitute

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Cambodia: Symbolic Institutions Are No Substitute CAMBODIA: SYMBOLIC INSTITUTIONS ARE NO SUBSTITUTE The Cambodian Human Rights and Development Association (ADHOC)1 1. INTRODUCTION The current human rights situation in Cambodia is strongly influenced by the political climate that emerged after the controversial July 2013 parliamentary elections. Mass protests against the results of the election – which saw Prime Minister Hun Sen’s Cambodian People’s Party (CPP) confirmed as the ruling party – were violently suppressed by governmental security forces. The blanket ban on all public demonstrations which followed triggered three days of large-scale protests by garment workers demanding an increase of minimum wage. The response of the government was brutal, and lethal force used to subdue the protesters left at least five people dead and scores injured. A 16-year-old boy, who a witness says was shot in the chest by security forces, remains missing. The government failed to properly investigate these crimes and perpetrators were never held accountable for their acts. Corruption remains rampant and violence against government critics is commonplace. Opposition party members, journalists, trade unionists, workers and human rights defenders have systematically been judicially harassed and/or arbitrarily arrested under fabricated charges, while state agents and well-connected individuals enjoy high levels of impunity. Access to justice for vulnerable groups remains limited due to a general lack of knowledge of their rights, insufficient resources allocated to legal aid and the remoteness of complaints bodies. Courts continue to be used as a tool to curb dissent and serve the interests of the wealthy and powerful, especially against poor urban, rural, and indigenous communities struggling to maintain possession of individual and community lands against land grabbing and forced evictions. In stark contrast, villagers’ complaints against private companies or authorities are systematically left unanswered or dismissed. Despite international obligations to use pre-trial detention as a measure of last resort, this is still the norm in Cambodia. Arrested and detained individuals have frequently reported instances of ill- treatment and torture, including police and prison authorities beating and kicking them or using electro-shock to the point of unconsciousness in order to extract confessions or extort money from them. A large group in Cambodia’s society still lives in poverty, in particular in the countryside. While economic development in Cambodia is increasing, due to a growing number of investments into development projects by large foreign investment and business companies, illegal land acquisitions, forced evictions, unsettled land disputes and inadequate compensation and resettlement packages to those illegally losing their land remain one of Cambodia’s most pressing human rights concerns. Little has been done to preserve indigenous peoples’ rights and to halt the encroachment upon and the destruction of sacred forests and burial sites by illegal loggers and land concession holders, which 1 Ms Almaz TEFFERA, Technical Advisor for Human Rights and Legal Aid, Cambodian Human Rights and Development Association (ADHOC); email: [email protected] . continue unabated. In many instances, communities have been left with no other choice but to protect their sacred sites through self-organized and self-funded patrols, exposing themselves to threats and intimidation, as those orchestrating illegal logging activities are often powerful and well-connected and operate in collusion with local authorities. 2. EXISTING HUMAN RIGHTS BODIES In terms of human rights promotion and protection within the Cambodian legal and political system, Cambodia has established three main commissions and committees, which, as will become evident, are far from equipped to ensure that human rights are effectively implemented and enforced in Cambodia. The National Assembly Commission on Human Rights (“NACHR”) is one of the nine commissions forming part of the lower chamber of Cambodia’s bicameral parliament, the National Assembly. It consists of nine members, the majority of which are CPP members. It is one of the existing forums for Cambodian citizens, which receives complaints with regard to human rights violations committed by state institutions. Most complaints deal with land disputes. It is also an advisory body to the Government on relevant laws and has an education and awareness-raising mandate. The Senate Commission on Human Rights (“SCHR”) is a commission forming part of the upper chamber (the Senate) of Cambodia’s bicameral parliament, and consists of five Senators; of which as in the NACHR the majority are CPP members. It is responsible for monitoring the implementation of human rights in Cambodia, receiving and investigating human rights complaints, and taking initiative in the drafting of proposals on the implementation of human rights law. The Cambodian Human Rights Committee (“CHRC”) was established in 1998 by a simple Royal Decree instead of an act of parliament. It is the overarching human rights institution, which reports to the Council of Ministers. The CHRC is presided by H. E. Om Yentieng: senior advisor to Prime Minister Hun Sen; a high-ranking member of the ruling CPP party; the head of the Anti-Corruption Unit; and head of the Cambodian Intelligence Service. Sub-Decree No. 570 (23 December 2013) defines its roles which include duties to investigate and receive complaints related to human rights violations, follow up on the implementation of human rights, organise trainings, and disseminate information on human rights. The Committee is organised into two departments, i.e. the department of administration and complaints and the department of investigation and human rights education. In addition, the CHRC is commissioned to create a network of ‘volunteer watchdogs’ at municipality, province, district and commune level, whose role is to facilitate and inspect enforcement of human rights in both public and private institutions, as well as to report to the Government about the current human rights situation, to cooperate with the Cambodian National Council for Women and other human rights-related institutions, and to provide on behalf of the Government legal services to persons without means. The Government of Cambodia described in its report on the implementation of the International Covenant on Civil and Political Rights that the CHRC assisted the Government, “to advance the human rights and in solving all problems relevant to human rights violations”.2 When the CHRC was created, it was indifferent to the Paris Principles. It is not accredited by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights.3 Other state organisations focus on specific groups of persons, such as the Cambodian National Council for Women and the Cambodian National Council for Children and the Disability Action Council. The fight against corruption is undertaken by the governmental Anti-Corruption Unit, which reports to the Council of Ministers. Under the UN Optional Protocol to the Convention against Torture the Government of Cambodia was obliged to create an independent National Preventive Mechanism (NPM) to monitor and curb torture in places of detention – such as prisons, police stations and drug detention centres – within a year of its ratification of the protocol (i.e. by end of April 2008). However to this day it has failed to do so. The established inter-ministerial panel composed of the ministries of justice and interior does in no way replace an independent NPM, as these ministries are the ones supposed to be under review. According to the assessment of the UN Special Rapporteur on Cambodia, the Arbitration Council – dealing with labour-management disputes – is one of the few national institutions in Cambodia which was able to preserve a certain degree of independence, and thus credibility, among parties bringing disputes before it including trade unions. In 2006 Prime Minister Hun Sen had admitted that there was a need for the establishment of an independent NHRI that complied with the Paris Principles and that was separate from ‘existing institutions’.4 So far, the approach of the Government has been to establish bodies under the control of the executive rather than independent ones, prompting some observers to argue that these are “more symbolic institutions” than mechanisms to effectively promote and protect human rights in Cambodia.5 The Special Rapporteur on Cambodia in unison with human rights groups has criticised the current national human rights protection infrastructure in Cambodia, which they claim is inherently flawed. The fact that investigations into allegations of human rights violations committed by state agents or 2 Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Convention, Second periodic reports of States parties due in July 2002 Cambodia,11 April 2013, Doc. CCPR/C/KHM/2, p. 5, available at: http://cambodia.ohchr.org/WebDOCs/DocTreatyBodies/ICCPR/ICCPR-Eng_Apil-2013_Eng.pdf. 3 Human Rights Watch, Cambodia: UN Should Condemn Rights Onslaught Address Worsening Situation, Demand Real Reforms, 27 January 2014, available at:http://www.hrw.org/news/2014/01/27/cambodia-un-should-condemn-rights- onslaught 4 Cambodia – Joint Civil Society Report with CCPR Centre, Civil Society Report on the implementation of the ICCPR in Cambodia, Replies to the List of Issues CCPR/C/KHM/Q/2), To be
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