Report on the Arrest of Kem Sokha
and other Public Figures
Rationale:
The Association of Southeast Asian Nations (ASEAN) was
founded in 1967 and currently comprises ten countries,
including Cambodia. The Working Group for an ASEAN Human
Rights Mechanism was established in the early 1990s as
a civil society working group to advocate the need for
a regional/sub-regional human rights mechanism in the
ASEAN region. It can be recalled that although in 1993
the Ministers of Foreign Affairs of ASEAN referred in
their annual communiqué to the possibility of setting
up a regional human rights mechanism, since then they
have not yet established such mechanism. The Working Group
has thus endeavoured to provide ideas for the form and
substance of this mechanism and to advocate its establishment.
Increasingly, in the quest for a regional mechanism,
the Working Group has enjoyed closer relations with the
governments of the region, manifested by the fact that
in recent years, several governments have been willing
to host various human rights workshops together with the
Working Group. Auspiciously in 2005 at the Vientiane Summit
of Heads of Government, the ASEAN Security Community Plan
of Action was adopted and it referred explicitly to the
possibility of setting up an ASEAN Women's and Child Rights
Commission as a human rights mechanism.
The Working Group for an ASEAN Human Rights Mechanism
comprises a number of national working groups. There is
a Cambodian working group, and a key member of that national
working group is Kem Sokha, an eminent human rights defender
and the director of the Cambodian Center for Human Rights.
On 31 December 2005, Kem Sokha was arrested by the Cambodian
authorities on charges of criminal defamation against
the Government, resulting in his pre-trial detention.
The arrest of Kem Sokha triggered the concern of the Working
Group in regard to the declining human rights situation
in Cambodia, affecting human rights defenders, including
those belonging to the Cambodian working group. This was
the primary reason why , at short notice, the Working
Group sent two of its members, Vitit Muntarbhorn (Thailand)
and Param Cumaraswamy (Malaysia) to Phnom Penh to appraise
the situation , to try to visit Kem Sokha and to explore
future options. During the two-day visit, the team met
a variety of non-governmental organizations (NGOs), ambassadors,
international agencies, and individuals. While the team
tried to have access to government personnel, they were
all otherwise engaged at the time.
The team expresses its gratitude to the United Nations
Human Rights Office in Cambodia, especially Margo Picken,
and various NGOs for their assistance in facilitating
the visit.
It should be noted that Cambodia is a party to all the
core human rights treaties, including the Covenant on
Civil and Political Rights which guarantees human rights,
including freedom of expression and assembly. At the national
level, the 1993 Cambodian Constitution provides parallel
guarantees.
Circumstances:
The arrest of Kem Sokha is one of several recent arrests
and charges brought against human rights defenders and
well known public figures by the Cambodian authorities
on grounds of criminal defamation. These incidents have
added to the "climate of fear" emanating from
government-related practices. This was noted by several
people with whom the Working Group members talked.
The circumstances behind the arrest were that the Cambodian
Center for Human Rights, and other NGOs, including the
Community Legal Education Centre, were part of the organizing
committee of a public event to mark International Human
Rights Day on 10 December 2005, which had been authorized
by the authorities. One banner belonging to the Cambodian
Center for Human Rights had additional comments written
on it, including a comment which gave rise to the defamation
charges - it allegedly accused the Prime Minister of Cambodia
of "selling land" to Vietnam. Kem Sokha , Director
of the Cambodian Center for Human Rights was arrested
with Yeng Virak, Director of the Community Legal Education
Centre on 31 December 2005. Later, Kem Sokha's deputy,
Pa Nguon Teang, was also arrested.
On a positive note, at the time of the visit of members
of the Working Group, Yeng Virak was released on bail,
although the defamation charges had not been dropped.
However, the bail application of Kem Sokha had been rejected
at first instance and was pending appeal before a higher
court. Both Kem Sokha and his deputy were in pre-trial
detention in a Phnom Penh prison.
From the discussions that the Working Group members had
with a variety of NGOs involved in the event, it seems
that the allegedly offensive banner was an old banner
used during the national elections of 2003. There was
an issue concerning whether the allegedly defamatory comment
was old or new, and who was responsible for writing it.
When the authorities complained to the organizers about
the offending banner, the organizers asked for the banner
to be taken down, which the Center did, thus showing good
faith.
A major concern surrounds the use of criminal defamation
law , invoked by the Government against the accused, based
upon article 63 of the United Nations Transitional Authority
in Cambodia (UNTAC) Criminal Law and Procedure *. The
members of the Working Group were informed of other developments
as follows:
- While Kem Sokha's lawyers had periodic access to
him in prison, Kem Sokha's wife had only been permitted
to visit once; however, on the day when the Working
Group members talked to his wife, they were informed
that Kem's wife had been told she would be granted permission
to visit him twice a week. We understand that during
the week following our visit she was given permission
to visit him four times a month;
- Kem Sokha has health problems needing attention from
his own doctor; to date his doctor has had no access
to him; a medical report from his doctor should also
be prepared and given to the prison authorities and
to the judge considering his bail application; given
the poor conditions of the prison, Kem Sokha's health
has been affected negatively;
- Regrettably, the Working Group members were unable
to visit Kem Sokha as permission had not yet been granted
for them to visit, prior to their departure from Phnom
Penh;
- The charge of criminal defamation is a misdemeanour,
not a felony, with possible imprisonment of between
eight days and one year, and a further fine; this would
seem to imply a minor offence where imprisonment should
be not be used , particularly for the pre-trial phase,
and if it is to be imposed, it should be a matter of
last resort;
- Pre-trial detention is possible for up to four months,
extendable to six months under the Cambodian law; however,
given the limited capacity of the judiciary to consider
cases, those in pre-trial detention are often kept for
longer periods, exceeding the legal limits; this provides
an additional reason for not keeping people in pre-trial
detention, since it might ultimately exceed the final
prison sentence itself if the accused is found to be
guilty;
- While bail should be granted to the accused, the practice
is that if they are political cases, bail is denied;
and,
- There is a broad perception that the judiciary is
not independent and that it is subject to pressure from
the executive branch of government.
Recommendations:
At a time when ASEAN is moving towards the establishment
of a regional human rights mechanism, it is important
to encourage Cambodia to abide by human rights standards
and to ensure space for democratic aspirations and the
work of human rights defenders, including NGOs. In this
perspective, ASEAN has a key role to invite and support
Cambodia to take the following measures:
-
Release Kem Sokha and other human rights defenders
on bail immediately;
-
Ensure that Kem Sokha's family and doctor have access
to him consistently in any event; the need for such humanitarian
access pertains to the situation of all prisoners;
-
Enable a medical report on Kem Sokha's health to
be prepared by his doctor and ensure that it is taken
into account by the prison authorities and the judge considering
his bail application, for the sake of humane treatment;
-
Shun using criminal defamation/law; rather, if there
are to be claims of defamation, they should be civil claims;
-
Avoid pre-trial detention, granted that it might
regrettably be abused to detain the accused for excessive
periods (even periods longer than the maximum sentence
for the offence itself), and expedite trial proceedings;
-
Explore the possibility of a compromise between the
accused and the authorities, with the help of an intermediary,
perhaps by means of the expression of regret or apology,
while not necessarily implying that the accused accepts
the responsibility for the alleged defamation; and,
-
Respect the right to freedom of expression and other
human rights as part of a democratic culture, build judicial
independence as part of the Rule of Law, and maximize
space for civil society as a key check-and-balance for
the exercise of State power.
Members of the Working Group for an ASEAN Human Rights
Mechanism on the visit:
Professor Vitit Muntarbhorn (Thailand)
Dato' Param Cumaraswamy (Malaysia)
POSTSCRIPT:
Kem Sokha and other public figures were released on bail
after the visit of the Working Group members, primarily
due to foreign pressure from many sources.
-------------------
*1992 Provisions relating to the Judiciary and Criminal
Law and Procedures applicable in Cambodia during the Transitional
Period: article 63:
