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|¡@|| ROLC-U-3 from 08.12.2005
Human Rights in Cambodia*
By SOK Sam Oeun**
Today is the human rights day which the people around the world are celebrating. Some people in Cambodia is joking that we have only one day enjoying our human rights, but on the others the government forgot and ignored. The poor people complained that they have not enjoyed their rights yet but the government officials said that the human rights in Cambodia has been improved a lot if we compare with the time before 1993 or with Pol Pot time. The rich people said that they were enjoying their rights enough.
The Human Right Day is not a festival. But it is the day that we should remind and review the past last year whether our human rights have been protected or not. If there were not, it is better for us to think how we can promote and protect human rights, in particular for the vulnerable and disadvantaged people. It is not the day that we should review about ourselves but we should review also the people in the other countries, in particular the transitional countries which are under or have just been freed from dictatorship, military or genocidal regimes or from the war.
In fact, the situation of human rights in Cambodia is further improved than we were before 1993 or in Pol Pot time. But, we could not compare with those bad times. We need to compare with other people in world, or other countries in the region. The little improvement from the bad situation is not enough. We need:
THE IMPORTANCE OF HUMAN RIGHTS
Some people said that human rights is a concept created in Western world, it cannot be used in Asia. It is wrong perception. Every body, rich and poor, Westerners, African or Asian, black, yellow or white people are equal. Everybody needs to live with dignity. Human beings cannot live like parrots living in the cage without freedom to travel anywhere, freedom to speak what they want, or freedom to express opinions what they are thinking. Human beings cannot live like cattle that are used any time, without rest and without care of their health.
Cambodian people experienced a lot of human rights abuses in Pol Pot time. We understand clearly how important of freedom and human rights. At that time, Khmer Rouge regime robbed all of our properties and our land and forced us to go to live in country side or forest where we did not want to. We were forced to work hard, did not provide us enough food. The children were not allowed to education. We had no rights to choose jobs. Everybody was forced to farm and work what we did not like to work. We were forced to live far from our parents. During any meeting, Khmer Rouge leaders always said that everybody has right to express opinion, but many people were killed because they expressed opinion against Khmer Rouge policies, etc¡K
No one understands about the importance of human rights more than the people who had experienced their rights abused. The people who crossed their lives in Pol Pot regime understand clearly that the human rights and freedom are very important for them.
Because Cambodian people did not want those bad historical experience would be happened again in Cambodia and we did not want our rights abused like in Pol Pot time, a new Constitution was adopted in 1993. This new Constitution guaranteed many Citizens' rights in accordance with international standard. Additionally, the Article 31 of this Constitution recognized all human rights instruments of the United Nations. It means that Cambodian people shall enjoy their rights like other people in the world. It is only in the Constitution. What happens in real life?
No Independence of Judiciary, no Human Rights
In 1995, two press editors were convicted on defamation because they criticized the prime minister. Their lawyers argued that they should not be charged on a criminal offense because they were journalists and must be under the press law. If they are charged on press law, they would not receive any imprisonment. If there is not criminal charge on journalist, the journalists will not be scared to express opinion and release information to the public. Therefore, at that time everybody wanted the Supreme Court to make clear that the government could not use criminal offense to charge journalists. But, unfortunately, the Supreme Court did not dare to decide that the criminal offenses could not be used against journalists. Instead, the Supreme Court announced that it had not power to interpret the law. Only the Constitutional Council could interpret the law.
In Kbal Spean case, five people were shot to death and many others were injured because of the crash between the people and police and military force used by the winner to evict the people from the land they lost in the court. Some military men were arrested but were found not guilty because the court could not find any evidence against them.
Based on the lessons learnt from this case, the human rights cannot be respect and protected if the judiciary is not strong and independent enough.
Human Rights Cases and Citizen's rights Violation
Many people perceives that the fact of a government official abuses a person's rights is a human rights abuse. So, in order not to show that there are any human rights abuses, the official-in-charge must hide this information. For example, if a prison guardian beat a prisoner, the Chief of Prison will hide this information.
Is the fact that a prison guardian beat a prisoner the human right abuse? It may be but it also may be not. If the prison chief investigates the incident and punishes who did wrong, it is not human rights abuse because the prisoner's right has been protected by the government. And if the prison chief understands this meaning, he or she will not hide for his or her staff and instead he or she will protect the victim's rights.
Therefore, it is very important to understand what human right abuse is. If the meaning of human right abuse is misunderstood, the word human right will increase human rights abuses.
How to abuse Human Rights
There are many types of abusing human rights.
1. Human Rights violation by lack of protection: A right is abused by a person and the government does not try to protect the victim's rights. For this case, we need to improve judicial system and law enforcement system.
2. Human Rights violation by lack of assistance: The people cannot or is not able to enjoy his or her rights, and the government does not try to assist him or her to enjoy that rights. For this case, we need to have mass movement and train the people to advocate for their need.
3. Human Rights violation by Law: The people need a right to do or not to do something, but the law prohibits or forces the people to do that act. For this case, we need to have law reform and push the government to recognize and ratify international laws.
Human Rights Mechanism
At present, there are three human rights commissions in Cambodia, of the National Assembly, the Senate and of the Government. But all of them are not independent from the three branches and not strong enough. There is no procedure to solve the human rights abuse, if the act is not a crime. In India, the victim of human rights abuse can complain to the Supreme Court and in Europe they can complain to the Human Rights Court in Strasbourg. But, in Cambodia the people found no place to complain if they feel abused by powerful people. There are many strikes in front of the National Assembly but they were cracked down by riot police.
During the negotiation between elected parties, both of ruling parties, CPP and Funcinpec, agreed to establish a National Independent Human Right Commission. The civil society also is discussing a draft of law on this commission in order to recommend to the government. However, Cambodia still needs to reform the jurisdiction of Supreme Court so that this court can hear human rights case or establish a Special Court on Human Rights.
Police is the ones who have duties to protect the people's life and properties. When police receives information about robberies or any events can impact to the people's life or properties, they must go to the scene immediately to save and protect the people and their properties. However, they should use some powers to do their works. Their powers, such as power of arrest, search, entry and seizure, all are impact to the people's rights. So if they do not follow the legal process carefully or the law itself not fair enough, they will be viewed as the first ones who violate human rights. However, if the police are well trained, they will be the first ones who protect human rights.
Therefore, the police reform must be prioritized. Their training must be human rights based approach. Their concepts and organizational structure must be changed. They must be non-partisan. In Cambodia, most police officers are members of ruling parties and top positions of police forces are shared by quota between both ruling parties. These practices must be stopped.
In order to reform police forces, a police code and ethics must be made. Clear and transparent police policies including recruitment, disciplinary action and promotion must be in writing and implemented strictly.
Police should be changed from:
However, at present the Ministry of Interior establishes a Royal Police Training School and five Regional Police Training Schools. The Ministry of Interior opens for cooperation with NGOs to establish a new police training curriculum. The Ministry also asked Mr. Sok Sam Oeun to draft a Police Code for the Ministry. However it still needs time and political wills.
Human Rights Commission must be independent
There are many debates on how to establish an independent institution. Political parties said there were no independent people, so the members of independent institution shall be mixed among all political parties having seat in national assembly. Civil society had different views. They believe that they can find independent people but they should be recruited by a recruitment committee consisting of political party representatives and civil society. The recruitment committee will recruit candidates for members of human rights commission for the National Assembly or the Senate to vote for.
However there are many other factors to make an institution independent. It shall have autonomous budget and has power enough to operate its function freely. It is better to make this commission as a constitutional one. So, it is better to amend the Constitution and put the human rights commission and how to recruit its members in the Constitution.
Human Rights Commission must not be misused
At present, we remark that the Human Rights Commission of the Government tried to report against the report of human right violation made by the Civil Society or by the Officer of Human Rights of the United Nations. The Commission also has responsibility to report about the human rights situation to the Human Rights Commission of the United Nations. So it means that the commission has two conflicting roles, preventing and fighting against human rights violation and protecting the government against bad reputation of human rights abuse. These two functions can make the Commission to change its mission and it will become the one that tried to hide the wrongdoing of the government not to find and prosecuting human rights abusers.
It is okay that the government has its human rights office to correct the wrong doing or promote human rights but it is better to have another human rights commission which is independent from the government. I recommend strongly that the Independent Human Rights Commission must not have function to represent the government to report on human rights situation in the country.
Constitution must be protected
The Constitution is the top law of a county. There are two types of Constitution, rigid and flexible ones. Flexible Constitution is the one that is easy to change or has been changed or amended many times. If the Constitution is flexible, we can say that it is a weak Constitution or we can say that the executive or powerful person is above the Constitution. If the Constitution is not protected or is ignored or violated without protection measures or mechanism, the human rights will be easily abused the same.
In 1993, Cambodia passed a new Constitution. This Constitution recognizes all International Human Rights instruments and guarantees many rights of the people. But, it also recognizes existing laws before the Constitution until the new ones would replace them. Before 1993, Cambodia was socialist regime so those laws do not care about the people's rights but they cared only the interests of the State. For example, at present the government uses law on demonstration to prohibit the demonstration. So, if this law is still in force, the freedom of expression and freedom of assembly guaranteed in the Constitution means nothing. Now twelve years has been passed but the government is still using law existed since socialist time.
The Government passed a law on press regime in 1995. In that law, there is no imprisonment used against journalists. But the government still uses penal code to put journalist in jail. In recently, Mr. Mam Sonando, the Director of Behive Radio has been arrested on defamation because he interviewed a person who criticized the Prime Minister.
In 1994, because of the deadlock of forming the new government, both ruling parties make an Additional Constitution. Many legal analysts said that Cambodia has two Constitutions. It is another type of amending the Constitution. If it is an additional one, it means Cambodia has two Constitutions. It also means that the Constitution of 1993 is not the Top Law of Cambodia.
So we can see that the Constitution of the Kingdom of Cambodia is very flexible, or we can say that it is very weak.
Regional Human Rights Mechanism
Europe has its European Human Rights Commission and one Human Rights Court. Even though Europe and Asia may have different values on human rights, it is better for Asia to have similar human rights mechanism so that Asian States can help each other to raise the level of human rights in our continents. In case we may not be able to start for whole Asia, but we may start from Regional level.
We hope that in short future, ASEAN may lead to establish its ASEAN Human Rights Commission and ASEAN Human Right Court in Asia.
Roles of NGOs in Cambodia
There are many types of NGOs in Cambodia. We can categorize them into four types:
1. Human Rights NGOs,
2. Democracy NGOs,
3. Development NGOs and
4. Legal Aid NGOs.
However, they have four types activities:
1. Development assistance such as providing or donating wells, school building, computers, etc¡K to the poor people.
2. Awareness programs:
a. Health Awareness: HIV, sanitation, health, medical care etc¡K
b. Legal Awareness: legal skill training, workshop on legal issues, etc¡K
a. Local advocacy: with local authorities, cadastry committees, etc¡K
b. Political advocacy: lobby with donors, foreign embassies or high rank officials relating to political tension, for example arrest of radio director, or arrest of civil society leaders, etc¡K
c. Legal advocacy: giving comments to the draft laws, etc¡K
4. Legal Aid: There are two largest legal aid NGOs, the Cambodian Defenders Project (CDP) and Legal Aid for Cambodia (LAC). These two organizations provide legal services to the poor and vulnerable people free of charge. Since 1994, the CDP represented more than eleven thousands poor and vulnerable people.
In Cambodia, NGOs are stronger than the government. Many good staffs work with NGOs. However, after 2003 more good people left NGOs and joined the Government. Recently, the Government arrested and issues warrant for arresting many NGO leaders who criticized the Government. All top leaders of NGOs are in the black list of government. It is a backward step of democracy in Cambodia.
Therefore, if an NGO is independent it becomes a watch dog to monitor the government. It will become a fourth power. However, each NGO has different strategies. Some NGOs use confrontation approach, some use coaching approach, etc¡K In order to have synergy, NGOs establish many coalitions, so that they will work as a group.
More Independent Bodies, Stronger Democracy.
Civil Society is a bridge between the people and the Government
Since 1993, the New Constitution adopts many good principles and guarantees many rights of the people. When we read it, we feel that we have all those rights. But it is not true. If you do not try to demand those rights you do not know whether you have any rights or not. For example, in the Constitution provides the freedom of demonstration, but at present the government do not allow the people to have any demonstration or any event in the public places. You can organize it only in any building. So, do we enjoy this right? We must demand.
So the civil society or NGOs have very important roles in telling the people what rights they have and help the people to demand those rights to be sure that we have really those rights or not. It is a normal life of Democracy.
Human Rights Day is not a Human Rights Festival. We do not come only for fun and chatting with old friend. But, we must use this day to review whether the people have their human rights or not. It is the day that reminds us that we must try to strengthen human rights mechanism in our own country, help neighbor countries, and build regional and continental human rights mechanism.
The government is only a group of the people working for the people. We vote for them not to kill us but to serve us. If you are elected as a leader or head of state, you are parent of the people. You must care the children, love them, tolerate them and work for them.
 Lawyers of the Cambodian Defenders Project.
 Cambodian People's Party, former Heng Sam Rin Regime.
 From French abbreviation: National United Front of Cambodia for Independence, Peace and Cooperation.
 It cooperates with the Cambodian Defenders Project and the Asian Human Rights Institute to establish a new police training curriculum.
 They finished the training course for Police Trainers (ten from Royal Police Training School and ten from the Training Department of Ministry of Interior.
 It may be working with government, the salary is very low.