Thursday 21 December 2017
On the evening of 16 November, surrounded by a perimeter of barricades and scowling military police, the Cambodian Supreme Court issued its most influential verdict in years. The country’s main opposition party, the Cambodia National Rescue Party (CNRP), was found guilty of treason and instantly dissolved. One hundred and eighteen of its representatives were banned from politics for five years, clearing the way for Prime Minister Hun Sen’s ruling Cambodian People’s Party (CPP) to easily win next year’s national elections.
For the many observers of Cambodia’s justice system, the assured outcome of the case was the latest sign that courts remain in thrall to Hun Sen and the CPP. Supreme Court President Dith Munty, who was the presiding judge in the case, and Minister of Justice Ang Vong Vathana both sit on the ruling party's permanent committee.
Perhaps most damning for the ruling party was a leaked audio message from Hun Sen after the verdict. In the message, Hun Sen appears to conflate the courts with his party, warning party officials that next year’s election might still slip from their grasp even after the dissolution. ‘If we get bad results and lose it would be twice as bad after we already dissolved the opposition party,’ he says.
‘‘The case suggests that there is a total failure to respect the rule of law in Cambodia
Co-Chair, International Bar Association’s Human Rights Institute
Informed observers say the case highlights longstanding failures in the justice system, including those identified in the International Bar Association’s Human Rights Institute (IBAHRI)’s 2015 report Justice versus corruption: Challenges to the independence of the judiciary in Cambodia. Interviews undertaken by an IBAHRI delegation hinted at numerous challenges for the judiciary: laws that hold judges under the strict tutelage of the minister, widespread corruption and bribe-taking, and a deeply felt sense that authorities will always triumph in court battles.
‘The case suggests that there is a total failure to respect the rule of law in Cambodia,’ says Helena Kennedy, Co-Chair of the International Bar Association’s Human Rights Institute. ‘The rule of law depends on the separation of powers – the judiciary must be independent of the government. That the president of the court sits on the [CPP’s] permanent committee is an indication of this failure.’
The government has strongly denied accusations of judicial bias. It has instead cast the prosecution of the CNRP as a cut-and-dried protection of Cambodian sovereignty against CNRP’s alleged plans for revolution. With CNRP’s lawyers boycotting the trial, lawyers for the prosecution held the floor. Their primary evidence centred around a video of CNRP president Kem Sokha (who is himself in jail following charges of treason) boasting of 'US support' for his political career.
Representatives of the justice ministry could not be reached for comment. But Council of Ministers spokesman Phay Siphan defended the judges in the case and said the accusations against the court, including those made by the CNRP’s lawyers, masked their own failure to represent their clients. ‘They accuse the court as politically affiliated to cover their wrongdoing,’ he said. ‘It’s the word they use [to] incite people against the regime.’
But Sotheara Yoeurng, the law and monitoring officer at the Committee for Free and Fair Elections in Cambodia, said the laws themselves were flawed. Cambodian law didn’t allow for the dissolution for political parties until February. Then the CPP-led National Assembly passed new amendments to the Law on Political Parties that allowed the Supreme Court to disband parties if their leaders were convicted of criminal offences or for a variety of other vaguely worded offences. A later batch of amendments passed in July also prevented parties from consorting or getting help from criminals. A CPP spokesman said the changes were directed at former CNRP president Sam Rainsy, who has battled various criminal and civil cases observers call politically motivated.
Yoeurng also called for changes to rules governing judges, saying the current law did not explicitly prevent them from joining political parties. ‘Clear-cut language has to be codified in the law(s) to prevent them from joining politics,’ he said.
Those themes were also taken up in an October report by the International Commission of Jurists, which found the lack of independent judges to be the single biggest problem plaguing Cambodian courts. ‘There are some very capable judges within the justice system,’ said Kingsley Abbott, a Bangkok-based legal adviser to the ICJ. ‘However, what is required is for them to be able to conduct their work independently and impartially – free from political interference – which would require a sea-change within the current system.’
Abbott urged pressure from the outside, from donors who invested heavily in judicial reform, and from Cambodian judges and prosecutors who might buck the prevailing trend.
Both efforts will likely face strong headwinds. The US, which has called the case against the CNRP ‘meritless and politicised', recently announced sanctions against senior CPP officials for the dissolution. But China, whose judiciary has also been roundly criticised, has backed the verdict, and last year promised help revamping Cambodia’s court system.
To Siphan, the government spokesman, attempts to reform the court system and cast blame on government higher-ups could excuse misbehaviour by judges.
Judges ‘cannot say [they are] under pressure,’ he said. ‘The Constitution spells out very clearly. They have a liability for whatever they decide.’