The Struggle Against the Corrupt Justice System
The lack of an independent judiciary is a symptom of much that is wrong with Cambodia. The kangaroo courts that masquerade in their place are also a tool for implementing the country’s culture of corruption and for violating the most basic human rights. Even before the Khmer Rouge, Cambodia’s courts were weak and politicized. The abolition of any pretense of the rule of law during the Khmer Rouge years, and the decimation of the judicial profession that took place, gave later governments carte blanche to construct their own heavy-handed form of justice. The 2016 Rule of Law Index published by the World Justice Project found that Cambodia ranked 112 out of 113 countries surveyed worldwide. Public confidence in the system is non-existent. Ordinary people know that bribery is the only way to get anything done.
The lack of legal transparency at all levels has been recognised as a major drag on foreign investment in Cambodia. According to the European Union-funded GAN Business Anti-Corruption Portal, potential investors inside and outside the country have identified inconsistent rulings and corruption in business disputes as a major deterring factor. The International Bar Association (IBA) in 2015 found that the judiciary’s shortcomings were so serious that the Cambodia Bar Association’s membership of the IBA should be reviewed. A series of three laws passed in June 2014 strengthened and entrenched the power of executive over the judiciary. The IBA found that trainee judges had to pay bribes if they were to launch their careers, and that membership of the ruling Cambodian People’s Party meant a better chance of promotion. Women remain chronically under-represented. Clerks and bailiffs often perform the role of judge, arriving at decisions of which the nominal judge may not even be aware.
The Extraordinary Chambers in the Courts of Cambodia (ECCC), co-administered by the Cambodian government and the international community to handle crimes committed by the Khmer Rouge, was found by the IBA to be subject to ministerial influence to block arrests of former members of the Khmer Rouge who are now high-ranking members of the executive. According to James Goldston of the Open Society Justice Initiative which has monitored the trials, the history of the ECCC has been “a series of concessions to Hun Sen . . . In the 1990s, the US, France and Australia overruled the recommendation of UN experts that the tribunal should have an improper interference. More recently, no donor government has publicly challenged Phnom Penh’s baseless opposition to further trials beyond those already underway. Though each effort to appease Hun Sen seemed necessary at the time, together they have undermined the tribunal’s ability to provide justice that is, and appears to be, free of political influence.”
Arbitrary and unlawful detention without proper trial is used as a tool against anyone who dares to oppose the government, or simply defends themselves and their rights. This violates Cambodia’s obligations under human rights law. Cambodian civil society groups have responded with unanimous condemnation. Many have fled into exile to avoid judicial persecution. Thugs who are paid by the government act in tandem with the workings of the court, as in the case of protestors against the sentence handed down to land rights defender Tep Vanny in February 2017. Any normal judiciary would investigate the violence that was plainly used, but it was simply ignored.
Cambodia’s compliant courts are designed to hide the truth. They shy away from investigating corruption among the country’s powerful elite, instead launching politically motivated investigations against the opposition and non-government organizations such as the Cambodian Human Rights and Development Association. The court case concerning the 2016 assassination of government critic Dr. Kem Ley, where the defendant gave his name as “Meet to Kill” and said that he had been supplied with the weapon used by a man called “Pou lis” convinced no-one inside or outside the country that a serious attempt was being made to solve the crime. The International Commission of Jurists (ICJ), Amnesty International, and Human Rights Watch criticized the shortcomings of the trial held in March 2017 and called for the case to be kept open. Millions of Cambodians share my belief that the government was responsible for the killing.
The current leader of the Cambodia National Rescue Party, Kem Sokha, was arrested for alleged defamation of the prime minister in 2005, then released in January 2006 after international diplomatic pressure. In 2016 he was sentenced to five months in jail on politically motivated charges and was forced into hiding for months at CNRP headquarters before being given a royal pardon. I have had my parliamentary immunity repeatedly stripped as the government has sought a way to neutralize me. Defamation convictions have piled up against me and have been used as a pretext to threaten the dissolution of the CNRP, leading to my resignation as leader in February 2017. The government has even threatened to seize my property in Cambodia. The failure to file an extradition request to any of the countries which I regularly visit shows that the government knows that its convictions carry no weight in the eyes of any functioning judiciary.
In everyday life, most Cambodians simply seek to avoid any contact with the judicial system. A tragic consequence are the lynchings which occur in the cases of traffic accidents, and even petty theft. Lacking any confidence in the police and courts to investigate any case without being bribed, the mob takes justice into its own hands.
Despite everything, the IBA report in 2015 still found reasons for hope. With political will, proper funding and a commitment to the separation of powers, to which the CNRP is committed, Cambodia’s judiciary can still start to fulfil its mission to serve the country. The protest march in 1997 by the Sam Rainsy Party which was lethally attacked with grenades was called to demand an independent judiciary. Those who marched in 1997 were asking for an end to impunity and he equality of all citizens before the law. The memory of those who died requires that the struggle for these aims continues.
The arrest of seating senator Hong Sok Hour. His case is explained here