The Human Rights Situation in Cambodia in 2018

Introduction
2018 was marked by a severe deterioration in the human rights situation in the Kingdom of Cambodia (“Cambodia”). Ahead of the elections, the Royal Government of Cambodia (“RGC”) rushed the National Assembly to pass numerous restrictive laws aiming at silencing dissenting voices. At the same time, the space for civil society closed amid allegations of an alleged “color revolution”. Hasty trials and convictions of individuals critical of the government combined with a hostile environment surrounding the national election led to a decreased sense of ownership and involvement of the public in democratic processes.
Freedom of Expression
The creation of a lèse-majesté offence
On 27 February 2018, the Criminal Code of the Kingdom of Cambodia was amended to include an Article 437 bis entitled “Insulting the King”. [1] This provision, often referred to as the lèse-majesté offence, prohibits anyone from defaming, insulting or threatening the King through “any speeches, gestures, writings, paintings or items that would affect the dignity of the King.” Anyone found guilty under Article 437 bis faces one to five years imprisonment and a fine of between two and 10 million riels.
The lèse-majesté offence has been widely criticize¬¬d by both national and international Civil Society Organizations (“CSOs”). [2] Although freedom of expression must be conciliated with the protection of others’ rights and reputation, the lèse-majesté offence impermissibly restricts freedom of expression. The first conviction under the new lèse-majesté offence was issued on 04 October 2018. Ban Samphy, a former member of the former opposition Cambodia National Rescue Party (“CNRP”), was sentenced to one-year imprisonment for allegedly insulting the King in a Facebook post. [3] Three other individuals have been charged under the new provision.
Silencing Free Media
While 2017 witnessed a mass shutdown of independent media outlets, attacks on journalists continued in 2018. In March 2018, two RFA journalists – who had been imprisoned in November 2017 upon charges of espionage [4] – were prosecuted for allegedly producing pornography. [5] Although the pair were released after the July elections, [6] the case reflected growing hostility towards journalists.
On 05 May 2018, The Phnom Penh Post, which was considered by some to be the last independent newspaper in Cambodia since The Cambodia Daily’s closure, [7] was sold to a Malaysian tycoon, Sivakumar S Ganapathy. [8] This led to immediate interventions into the editorial process with the removal of an article covering the links between the new owner’s public relation firm and Prime Minister Hun Sen. Kay Kimsong, the long-standing editor in chief of the Post, was fired over a dispute regarding the article. [9]
On 24 May 2018, the National Election Committee (“NEC”) released a Code of Conduct calling on journalists to remain professional, fair and transparent during July’s national elections. [10] Under the Code of Conduct, journalists are prohibited from reporting information leading to a “loss of trust in the election.” [11]
In the 2018 World Press Freedom Index, Cambodia dropped 10 places from 2017 and ranked 142 out of 180 countries assessed. [12]
Growing online censorship
One key trend in 2018 was the continuous increase of online surveillance. On 28 May 2018, an inter-ministerial Prakas on “Publication Controls of Website and Social Media Processing via Internet in the Kingdom of Cambodia” (“Prakas”) was adopted. [13] This Prakas gave the RGC broad and intrusive powers that go beyond limitations allowed under international human rights law. Through the creation of a special unit, the government will be able to “obstruct and prevent” publications allegedly “intended to create turmoil leading to undermining the national defence, national security, relation with other countries, national economy, public order, discrimination and national culture and tradition.” [14] Websites are further required to register with the Ministry of Information, [15] thus at risk of arbitray shut-down. As no judicial supervision was set out, the Prakas constituted an impermissible restriction to freedom of expression. The government also ordered all domestic and international network traffic in Cambodia to be transmitted through a Data Management Centre (“DMC”), created by state-owned Telecom Cambodia. [16]
On 28 and 29 July, the day before and day of the national election, at least fifteen websites of independent news outlets were blocked by Cambodian internet service providers, on orders from the RGC. [17] Anyone trying to access these websites from Cambodia was met with an ‘error’ message. [18]
Freedom of Assembly
In the run-up to the 2018 July’s elections, freedom of assembly continued to be undermined. CPP officials continuously threatened to take measures to stop those calling for the boycott of the elections, claiming that such calls are illegal under Cambodian law.[19]
Peaceful demonstrations were often disrupted by authorities and were sometimes met with violence. In March 2018, security guards and police officers prevented journalists, CNRP supporters and human rights activists from attending Kem Sokha’s appeal hearing by barricading roads leading to the court. One CNRP supporter was slapped by a guard while drawing a message in support of Kem Sokha. Other CNRP supporters and officials were prevented from giving interviews to media reporting the event. [20] The RGC continued to cite a purported “color revolution” when restricting fundamental freedoms, including freedom of assembly. [21]
In a report covering the period from April 2017 to March 2018, the Fundamental Freedom Monitoring Project (“FFMP”) recorded 26 prohibitions of assemblies. Many of those were related to the dissolution of the CNRP and Kem Sokha’s case, showing the will of the RGC to stifle political opponents. [22]
Freedom of Association
In February 2018, the Constitution was amended to include provisions requiring political parties to “primarily uphold the national interest.” The text contains worrisome provisions regarding freedom of association. Under Articles 42(2) and 49(2) forbids conducting “any activities” which “directly or indirectly” affect “the interests” of the Kingdom of Cambodia and Khmer citizens. In addition, Article 53(3) states that “the Kingdom of Cambodia absolutely opposes any interference from abroad conducted through any forms into its own internal affairs.” [23] These amendments, which were passed without meaningful consultation, were described United Nations’ (“UN”) experts as impinging democracy. [24]
CSOs also raised concerns as to the excessive punishment prescribed for legal entities by the above-mentioned lèse-majesté offence. In addition of being potentially held responsible for offences committed on their behalf by their organs or representatives, legal entities are subject to sanctions ranging from disproportionate fines to dissolution. Considering the broad language of this provision, CSOs could be prevented from freely exercising their fundamental freedoms. [25]
Numerous associations have reported surveillance and intimidation by police authorities while carrying out activities. [26]
Fair Trial Rights
Judicial harassment of critical voices
The use of the judiciary to suppress those voicing their dissatisfaction towards the government remained widespread. Human rights defenders (“HRDs”), journalists, union leaders, community representatives, and others exercising their fundamental freedoms were often subject to judicial harassment.
On 13 July 2018, the Supreme Court upheld the conviction of three environmental activists from the deregistered NGO Mother Nature. [27] The three were arrested in 2015 for their peaceful involvement in a campaign against sand-dredging activities in Koh Kong. The trial was marred by a lack of adherence to fair trial rights. According to the presiding judge, the verdict was upheld because the defense had been unable to prove the innocence of the accused, thus reversing the burden of proof. [28]
On 26 September 2018, four HRDs from the Cambodian Human Rights and Development Association (“ADHOC”) and a NEC official were found guilty of bribing a witness in connection with an alleged affair with a political opponent, Kem Sokha. [29] All were sentenced to five years imprisonment with their pre-trial detention considered time served and the remainder suspended. The conviction has been widely criticized by CSOs as unfair and politically motivated. [30] In other cases, release from prison is often darkened by the threat of return. Tep Vanny and five other Boeung Kak Lake activists were found guilt of making “death threats” and received suspended sentences. Kem Sokha was released from prison and then placed under effective house arrest, unable to leave the streets around his home and barred from taking part in politics. [31] The World Justice Projects’ Rule of Law Index 2017-2018, which measures rule of law adherence across the globe, ranked Cambodia 112 out of 113 countries. [32]
Culture of Impunity
Impunity remains a serious concern in Cambodia. Cases involving crimes perpetrated against HRDs and journalists rarely involve accountability. In April 2018, the Appeal Court rejected a request from two Boeung Kak activists to reopen an investigation into an attack on lake residents in 2013 at Phnom Penh’s Wat Phnom by thugs and plainclothes police officials. [33] Although the Phnom Penh Municipal Court had provisionally charged unnamed individuals for intentional violence and had questioned some of the lake residents and Daun Penh officials, an investigating judge dropped the charges. [34]
In 2018, several cases of impunity remained unsatisfactorily resolved. July marked the two-year anniversary of the murder of Kem Ley, a political analyst who was assassinated in broad daylight days after commenting on the radio about a controversial Global Witness report alleging corruption at the highest levels in Cambodia. [35] Since 1994, 13 journalists have been murdered in Cambodia, and in 11 of these cases, no one was convicted for the murders. In the two cases where a trial did take place, some of the perpetrators were not brought to justice. [36]
Social and Economic Rights
Land Rights
Illegal land grabs and forced evictions continued to be among the most prevalent human rights violations occurring in Cambodia. Between April 2017 and March 2018, it is estimated that 33% of land disputes in Cambodia resulted in violations of fundamental freedoms, including legal actions and arbitrary detentions. [37]
For example, the Phnom Penh’s Borei Keila community, involved in a long-standing land dispute with the Phanimex Company, has been repeatedly prevented from advocating for its rights since the company forcibly evicted 300 families from their land in 2012. While protesting to demand fair compensation this year, Borei Keila residents were met with threats of prosecution and violence. [38] Similarly, in March 2018, the provincial police shut down all events organized by the Cambodia Coalition of Farmer Community (“CCFC”), blocking access to gatherings and harassing participants. [39] In April 2018, the CCFC’s President, along with representatives from other land rights NGOs, was accused, in an op-ed issued by the RGC mouthpiece Fresh News, of carrying out “color revolution” activities. [40]
As of August 2018, the Ministry of Land Management, Urban Planning and Development had received 9,131 complaints relating to land disputes. Of these, according to Ministry figures, 3,960 have been resolved, 2,854 have been rejected, 858 were withdrawn, and 1,459 are in the process of reaching a solution. [41]
Workers’ Rights
In June 2018, the Parliament passed the Law on Minimum Wage aiming to enhance decent living of workers and to enable a more attractive business and investment environment. [42] Despite the creation of a national minimum wage for all workers being a positive development, the law fails to comply with international standards. [43] Its scope remains insufficient, as the law only applies to “those enterprise or institutions and individuals who are under the supervision of the Labour Law,” excluding various other categories of workers. [44] In addition, the definition of “minimum wage” provided by the law does not take into consideration International Labour Organization’s recommendations. The vague wording of certain provisions could result in an arbitrary application of the minimum wage for certain categories of workers. [45] Moreover, the Royal Government of Cambodia (RGC) has not yet revealed how the minimum wage-setting process will transition from the current Labour Advisory Committee to the newly created National Council on Minimum Wage.
However, the government made a number of positive steps in terms of the rights of garment workers, including improvements in the social welfare system. [46] Health and safety concerns remain, including cases of mass fainting. [47]
On 7 November 2018, Prime Minister Hun Sen requested the labor and justice ministers to expedite, and end, cases against union activists. [48] This prompted the creation of a working group tasked with facilitating the resolution of lawsuits against unionists. [49] In a statement released on 5 December, [50] the RGC laid out a series of “steps to strengthen democracy and the political space”, which include the advancement of labor and trade union rights.
LGBTIQ Rights
The lesbian, gay, bisexual, transgender, intersex and queer (“LGBTIQ”) community is not criminalized under Cambodian law and enjoys relative visibility. However, societal and legal discriminations persist, including a lack of legislation to allow for same-sex marriage and adoption, or to recognize an individual’s gender identity if it differs from their sex at birth. In May 2018, a report titled “Revealing the Rainbow” documented that LGBTIQ HRDs were weakened by the Law on Associations and Non-Governmental Organizations. [51] The report also highlighted that LGBTIQ people remained at risk due to the ongoing crackdown on fundamental freedoms throughout the country. [52]
While no legal steps towards recognition have been taken, the government has shown some support for LGBTIQ rights. At a policy dialogue in May, the Ministry of Women’s Affairs stated that it has been working on addressing issues faced by LGBTIQ people, in particular promoting gender equality and responding to gender-based violence faced by the LGBTIQ community. H.E. Chan Sotheavy explained that if there were concrete data of LGBTIQ people in Cambodia, she could discuss the development of a new protective law. A representative from the Ministry of Labor and Vocational Training, H.E Chum Mom, further stated that if an employer discriminates against an employee based on SOGIE, the employer is at fault. Civil society organizations, as part of a sexual orientation, gender identity and expression working group, took part in consultations organized by the Cambodian Human Rights Committee on 17 August and 14 September ahead of the upcoming 3rd cycle universal periodic review to compile the national UPR report.
Conclusion
The human rights situation deteriorated in 2018, particularly in the run-up to the national elections. The RGC maintained a strong influence over the legislative process, leading to the adoption of laws introducing further restrictions on freedom of expression, association and assembly. This year also witnessed a crackdown on dissenting opinions, with tactics ranging from censorship to threats and violence. Harassment of independent journalists remained widespread, undermining the expression of diverse range of opinion and preventing Cambodian citizens from accessing information.