The Constitution of Cambodia Guards Over Human Rights

The UN Human Rights Committee met on 17 and 18 March 2015, and at that time also considered the second periodic report submitted by the government of Cambodia. On 31 March 2015, the Committee adopted the following Concluding Observations.

These Concluding Observations themselves request: “The State party should widely disseminate the Covenant [that is the International Covenant on Civil and Political Rights] … and the present Concluding Observations among the judicial, legislative and administrative authorities, civil society and NGOs operating in the country, as well as the general public.”

It should be understood that the International Covenant on Civil and Political Rights has received the signature of the Cambodian Government on 17 October 1980, and under the date of 26 May 1992 the Ratification/Accession by Cambodia is recorded. So it is not only an UN document; it became part of the legal environment also in Cambodia itself, as stated in Chapter 3, Article 31 of the Constitution of the Kingdom of Cambodia:

The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of human Rights, the covenants and conventions related to human rights, women’s and children’s rights.

Cambodia was represented at the meetings in Geneva in March 2015 by the following Delegation:

  • H. E. Mr. Mak Sabath, President of the National Human Rights Committee of Cambodia
  • H. E. Mr. Pol Lim, Secretary of State of the Ministry of Interior
  • H. E. Mr. Ith Rady, Undersecretary of State of the Ministry of Justice
  • Mr. Touch Khemarin, Official of the National Human Rights Committee of Cambodia

And also the following persons were participating:

  • H. E. Ney Samol, Ambassador/Permanent Representative
  • Mr. Iv Heang, Minister Concilor
  • Mr. Ouk Setha, Third Secretary
  • Ms. Say Niml, Third Secretary

In addition to the submission by the State representatives of Cambodia, also the following NGOs had presented related information:

  • Cambodian Center for Human Rights and the World Organization against Torture
  • Cambodian Human Rights Action Committee (CHRAC) in cooperation with CCPR Centre
  • FIDH-LICADHO-ADHOC
  • Human Rights Watch
  • INTERNATIONAL FELLOWSHIP OF RECONCILIATION (IFOR)
  • KHMER MCHAS SROK (KMS)
  • STAR Kampuchea (with assistance from the GI-ESCR)
  • World Organization for Human Rights

Documents of the UN Office of the High Commissioner for Human Rights can also be found on Facebook and on Twitter.

So much for the status of these Concluding Observations.

Their Introduction start with the following sentence, which shows a surprising timing information:

The Committee welcomes the submission of the second periodic report of Cambodia, albeit 10 years late.

As the Concluding Observations are a long text, I will quote here only some section, and even in abbreviated form (without changing any wording) – it is really worth while to read through the whole text.

Though the text is long, there is also a structural elements which helps. Many sections start with a positive acknowledgement of procedural or legislative actions of various Cambodian authorities, or just with information – but this is regularly followed by critical reservations and recommendations.

Domestic applicability of the Covenant

(5) While noting that international human rights treaties are part of Cambodian law and are directly applicable in Cambodian Courts, the Committee is concerned at the apparently limited level of awareness of the provisions of the Covenant among the judiciary and the legal profession, resulting in a very small number of cases in which the provisions of the Covenant have been invoked or applied by courts in Cambodia.

The State party should take appropriate measures to raise awareness of the Covenant among judges, prosecutors, lawyers and the public at large to ensure that its provisions are taken into account before national courts.

Gender equality

(7) While welcoming the measures taken by the State party to enhance the participation of women in public life, the Committee is concerned about the low representation of women in political and public sectors, particularly decision-making positions. It is also concerned about persisting stereotypes regarding the role of women in family and society, the existence of a significant gender wage gap and the concentration of women in low-income and unskilled sectors of the labour force, including the garment industry.

The State party should reinforce its measures to ensure equality between women and men in all spheres, including by more effective implementation of the relevant legislation and policies.

Gender-based violence

(10) While noting the State party’s efforts to combat violence against women at the legislative and policy levels, the Committee is concerned about the low number of prosecutions and convictions for gender-based violence. The Committee regrets the lack of information provided by the State party regarding reparations granted to victims of sexual violence crimes committed during the Khmer Rouge regime, as well as the lack of information on the evaluation of the results of the National Action Plan to Prevent Violence against Women (2009-2012).

The State party should ensure that cases of domestic and sexual violence are thoroughly investigated, the perpetrators are prosecuted and the victims adequately compensated. It should also provide mandatory trainings on the prosecution of gender-based violence for law enforcement and judicial officers, and facilitate victims’ access to justice.

Impunity for serious human rights violations

(11) The Committee is concerned by reports that no one has been held accountable for the extrajudicial killings, allegedly mainly perpetrated by the army, police and gendarmerie, in Cambodia since the 1991 Paris Agreements.

The Committee recalls its previous recommendation… that the State party has an obligation to investigate all cases of past human rights violations, in particular violations of Article 6 of the Covenant, prosecute the perpetrators and, where appropriate, punish them and provide compensation to the families of the victims.

Excessive use of force

(12) The Committee is concerned by reports of several deaths, many injuries and one enforced disappearance following repression by the security forces during various demonstrations in Phnom Penh… The Committee is further concerned by the lack of any specific detailed information on the investigations carried out into these cases.

The State party should investigate all allegations relating to the excessive use of force, especially the use of lethal force, by police and military personnel, and ensure that the perpetrators are prosecuted and the victims adequately compensated. Furthermore, the State party should increase its efforts to systematically provide training to all security forces, including municipal security guards, on the use of force, especially in the context of demonstrations, taking due account of the United Nations Principles on the Use of Force and Firearms by Law Enforcement Officials.

 

Prohibition of torture and ill-treatment

(13) The Committee is concerned at reports of torture and ill-treatment of detainees by law enforcement personnel, especially in the context of police custody and for the purpose of obtaining confessions. In this regard, it regrets the absence of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions in cases of torture and ill-treatment. The Committee is concerned that confessions obtained under coercion or torture cannot be ruled out without evidence and that judges use such confessions until evidence is determined in court proceedings.

The State party should establish an independent complaints mechanism with the authority to investigate all reported allegations of and complaints about acts of torture and ill-treatment… It should also ensure that alleged perpetrators of these crimes are prosecuted and that the victims are adequately compensated. The State party should take the steps necessary to ensure that confessions obtained under torture or ill-treatment are inadmissible in court in all cases, in line with its domestic legislation and Article 14 of the Covenant.

Conditions of detention

(14) While welcoming the steps taken by the State party to improve conditions of detention in prisons, the Committee notes with concern that overcrowding, inadequate health-care services, including lack of prison facilities for inmates with mental health problems, and reduced inmates’ daily access to outdoor exercise remain a problem in the prison system. It is also concerned at the alleged practices of corruption within the penitentiary institutions. The Committee expresses its concern regarding lengthy pretrial detention and the arbitrary confinement of prisoners after their sentences have been completed because the final judgments have not been communicated to the prison authorities.

The State party should adopt effective measures to reduce overcrowding in detention centres and ensure conditions of detention that respect the dignity of prisoners, in accordance with Article 10 of the Covenant. It should also ensure independent and prompt investigation, and the resultant prosecution of State officials responsible for corruption in the penitentiary.

Children in conflict with the law.

(15) While taking note of the information provided by the delegation regarding the status of the draft Juvenile Justice Law, the Committee is concerned at the absence of a juvenile justice system, and the fact that children are often subject to the same procedures as adults.

The State party should take measures to establish a comprehensive juvenile justice system in order to ensure that juveniles are treated in a manner commensurate with their age. It should also ensure the strict separation of juveniles and adults in places of detention, in compliance with international standards.

Arbitrary arrest and detention

(16) The Committee is concerned at reports of arbitrary arrest and detention of homeless people, beggars, people who use drugs, children in street situations and sex workers in ‘social affairs’, youth rehabilitation, and drug-rehabilitation centres.

The State party should take all necessary measures to put an end to the arbitrary arrest and detention of homeless people, beggars, people who use drugs, children in street situations and sex workers. All instances of torture and ill-treatment should be investigated and, if substantiated, prosecuted and punished.

Independence of the judiciary

(20) The Committee is concerned about the lack of an independent and impartial judiciary and regrets the numerous allegations of corruption within the judiciary. It notes with concern that the Laws on the Organization of the Courts, the Status of Judges and Prosecutors, and the Organization and Functioning of the Supreme Council of Magistracy, adopted in 2014, do not establish sufficient safeguards for judicial independence.

The State party should take immediate steps to ensure and protect the full independence and impartiality of the judiciary, and guarantee that it is free to operate without pressure and interference from the executive. It should undertake a review of the three laws on the judiciary with a view to reducing the competences of the Ministry of Justice and strengthening judicial independence.

Freedom of expression and association

(21) The Committee is concerned by reports of killings of journalists, human rights defenders and other civil society actors. It is also concerned about reports of harassment and intimidation of journalists, human rights defenders, trade union workers, land and environmental activists, and other civil society actors, as well as members of the political opposition, who continue to be prosecuted for their activities, in particular through the criminalization of defamation and other vaguely formulated offences.

The State party should ensure that everyone can freely exercise their right to freedom of expression and association, in accordance with Articles 19 and 22 of the Covenant and the Committee’s general comment No. 34 (2011) on freedoms of opinion and expression. In doing so, the State party should:

(a) Take immediate action to investigate complaints of killings, and provide effective protection to journalists, human rights defenders and other civil society actors, who are subjected to intimidation and attacks due to their professional activities;

(b) Refrain from prosecuting journalists, human rights defenders and other civil society actors as a means of deterring or discouraging them from freely expressing their opinions;

(c) Consider decriminalizing defamation and bring any other relevant provisions of the Criminal Code into line with Article 19 of the Covenant;

(d) Review its current and pending legislation, including the draft laws on cybercrimes and on associations and non-governmental organizations, to avoid the use of vague terminology and overbroad restrictions, to ensure that any restrictions on the exercise of freedom of expression and association comply with the strict requirements of Article 19, Paragraph 3, and Article 22 of the Covenant.

Right to freedom of peaceful assembly

22. The Committee is concerned about increasing reports of arbitrary arrest of demonstrators, and the practice of requiring them to thumbprint documents pledging to refrain from future demonstrations.

The State party should ensure that the Law on Peaceful Demonstrations is implemented in conformity with the Covenant. It should also ensure that the exercise of the right to peaceful assembly is not subject to restrictions other than the ones permissible under the Covenant.

And finally: what are the next steps foreseen in these Concluding Observations? The final Sections 29 to 31 make it clear:

Dissemination of information relating to the Covenant

(29) The State party should widely disseminate the Covenant, the text of its second periodic report, the written replies to the list of issues drawn up by the Committee and the present Concluding Observations among the judicial, legislative and administrative authorities, civil society and NGOs operating in the country, as well as the general public.
The UN Human Rights Committee expects some timely specific responses

(30) In accordance with Rule 71, Paragraph 5, of the Committee’s Rules of Procedure, the State party should provide, within one year, relevant information on its implementation of the Committee’s recommendations made in Paragraphs 11, 13 and 21 above.

The UN Human Rights Committee looks forward to the next Periodic Report from the Cambodian government in 2019, to be prepared not by government alone

(31) The Committee requests the State party to submit its next Periodic Report on 2 April 2019 and to include specific up-to-date information on the implementation of all its recommendations and on the Covenant as a whole. The Committee requests the State party in the preparation of the report to broadly consult civil society and non-governmental organizations operating in the country.

So there is a lot of work to be done.

It would be good to have publicly available also a similar list of actions taken by the Constitutional Council [Article 136] of the Kingdom of Cambodia – an independent institution [Article 128] that has “the duty to safeguard respect of the constitution, interpret the Constitution and laws” [Article 136] – clarifying, or if necessary, guiding the other branches, which do not have judicial power [130], if there is reason to assume that they do not live up in fulfilling their constitutional duties to protect the application of human rights, as basic values in the Constitution. The decisions of the Constitutional Council in these respects are independent [Article 128] and final [Article 142].

Notes on Articles of the Constitution of the Kingdom of Cambodia:

[Article 128: The Judicial power shall be an independent power]
[Article 130: Judicial power shall not be granted to the legislative or executive branches.]
[Article 136: The Constitutional Council shall have the duty to safeguard respect of the constitution, interpret the Constitution and laws adopted by the National Assembly and reviewed completely by the Senate]
[Article 142: The decision of the Constitutional Council is final]

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