COMPILATION OF THE REPORTS SUBMITTED BY CIVIL SOCIETY ORGANIZATIONS (CSOs)

Transcription

1 COMPILATION OF THE REPORTS SUBMITTED BY CIVIL SOCIETY ORGANIZATIONS (CSOs) TO THE UNITED NATIONS HUMAN RIGHTS COUNCIL DURING THE 18TH SESSION OF UNIVERSAL PERIODIC REVIEW (UPR) OF THE KINGDOM OF CAMBODIA Prepared by: CHRAC Secretariat July 2013

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5 TABLE OF CONTENTS TABLE OF CONTENTS... 2 FOREWORD... 3 I. INTRODUCTION AND BACKGROUND OF THE CHRAC S UPR PRJECT What is Universal Periodic Review (UPR) Engagement of Cambodian Civil Society Organizations in the UPR Process... 7 II. UPR SUBMISSIONS BY CIVIL SOCIETY ORGANIZATIONS (CSOs) FREEDOM OF EXPRESSION ISSUE LEGAL AND JUDICIAL REFORM ISSUE FAIR TRIAL RIGHTS RULE OF LAW AND TORTURE ISSUE PEACEFUL ASSEMBLY LAW ISSUE ACCESS TO INFORMATION CHILDREN ISSUE YOUTH ISSUE PEOPLE WITH DISABILITY LAND, HOUSING RIGHTS AND EVICTION ISSUE Joint Submission by 30 NGOs Joint Submission by FIDH and ADHOC Joint NGO Submission focus on Natural Resources and Forestry sectors RIGHTS TO PARTICIPATION IN ELECTIONS LABOR RIGHTS ISSUE Submission by CLC Submission by CLEC, LICADHO, LSCW and HRW PEACE AND SECURITY ISSUE MINORITY RIGHTS ISSUE LGBTIQ ISSUE INDEPENDENCE OF MEDIA MULTI-THEMATIC SUBMISSIONS Submission by LICADHO Joing Submission by Amnesty International and LICADHO HIV, SEXUAL AND REPRODUCTIVE RIGHTS ISSUE

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7 FOREWORD The Kingdom of Cambodia is placed under the 2 nd cycle of the Universal Periodic Review (UPR) of the United Nations Human Rights Council (HRC) in early This is a good chance and opportunity for which the civil society organizations inside and outside Cambodia can actively engage and participate in this process and thereby they can further inform the public and community to widely aware of this process in the Kingdom of Cambodia. During the 1 st cycle of UPR in late 2009, there were quite a large number of Cambodian civil society organizations got involved in the UPR process and they submitted their respective submissions to the HRC which were so helpful for this Council to make recommendations to Cambodia. This year, the civil society organizations both inside and outside Cambodia are very keen to take part in this process again through various debates, consultations among the CSOs more meaningful and active. These consultations aimed not only raising awareness among the Cambodian civil society organizations inside the country about the UPR and its 2 nd cycle process but also at encouraging many interested CSOs to prepare and submit different thematic submissions to the 18 th Session of the HRC in Geneva, Switzerland. The Cambodian Human Rights Action Committee (CHRAC) a coalition of 21 NGO and Association members working in the field of human rights, democracy and legal aid in Cambodia has got involved in both cycle noting the necessity of making better coordination among the Cambodian CSOs to prepare their respective submissions to the HRC. Having been actively engaged in this important process, CHRAC would like to sincerely thank to the Office of the High Commissioner for Human Rights in Cambodia (OHCHR), particularly Ms. Cybele Haupert (Head of Fundamental Freedoms Unit) and her colleagues Mr. Sam Sophal and Mr. Vong Ton who have provided both moral and technical supports to the CHRAC s initiative and this process. In the end, we could engage many CSOs to participate in the UPR consultations on different human rights themes and contribute their submissions to the HRC. The Joint Submissions made by the CSOs will not only serve as important documents contributing to the Cambodia s State Report but will give better reflection of the Cambodian government s commitment and obligations pursuant to the recommendations made by the HRC in the first cycle. We thank to all CSOs both inside and outside Cambodia who have contributed to this UPR process and shared their submissions for this compilation purpose. We believe that this compilation book is useful not just only for informative purpose to all relevant actors around the UPR process but also for further advocacy initiated by the CSOs with the relevant authorities. Last but not least, we would like to thank to all CHRAC members who have supported this initiative. Our special thanks go to the United States Agency for International Development (USAID) and the East West Management Institute (EWM) for their financial support to the CHRAC s project. Thank to my colleague at the CHRAC s Secretariat: Mr. Suon Bunsak, Mr. Oeung Jeudy, Mr. Billy Chia-Lung Tai, Mr. Hun Seang Hak, Mr. Ieng Pich, Mr. Nhean Sam Ath, Mr. Eang Chantha and Ms. Lach Sreytouch who have contributed their enormous efforts and commitment to coordinate this UPR process with the CSOs. Phnom Penh, 15 July 2013 SOK Sam Oeun CHRAC Chairman 3

8 I. INTRODUCTION AND BACKGROUND OF THE CHRAC S UPR PRJECT The Cambodian Human Rights Action Committee (CHRAC) has taken an initiative to raise awareness among the Cambodian Civil Society Organizations about the Universal Periodic Review (UPR) that is reviewed by the UN Human Rights Council (HRC) for the Kingdom of Cambodia on the 18 th Session in February Cambodia was placed under the first UPR cycle in late 2009 and the HRC made 91 recommendations to Cambodia and the Cambodian government has accepted all recommendations. Noting the significant contribution and the role of the Civil Society in country, CHRAC has approached the Office for High Commissioner for Human Rights in Cambodia (OHCHR) to start discussing on how to make a more meaningful and active participation of the CSOs in the UPR process. CHRAC approached several donors inside the country to support the initiative. In the end, EWMI decided to grant CHRAC to implement this UPR Project so that it can kick a start for engaging and involving many CSOs in Cambodia in the 2 nd cycle of the UPR process. 1. What is Universal Periodic Review (UPR) 1 The Universal Periodic Review (UPR) is a unique process which involves a periodic review of the human rights records of all 193 UN Member States. The UPR is a significant innovation of the Human Rights Council which is based on equal treatment for all countries. It provides an opportunity for all States to declare what actions they have taken to improve the human rights situations in their countries and to overcome challenges to the enjoyment of human rights. The UPR also includes a sharing of best human rights practices around the globe. Currently, no other mechanism of this kind exists. How was the UPR established? The UPR was established when the Human Rights Council was created on 15 March 2006 by the UN General Assembly in resolution 60/251. This mandated the Council to "undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States. On 18 June 2007, one year after its first meeting, members of the new Council agreed to its institution-building package (A/HRC/RES/5/1) providing a road map guiding the future work of the Council. One of the key elements of this package was the new Universal Periodic Review. The mechanism was further refined during the review process through resolution 16/21 and decision 17/119. These two documents provided the necessary modifications of modalities for the review in the second and subsequent cycles. What is the goal of the UPR? The ultimate goal of UPR is the improvement of the human rights situation in every country with significant consequences for people around the globe. The UPR is designed to prompt, support, and expand the promotion and protection of human rights on the ground. To achieve this, the UPR involves assessing States human rights records and addressing human rights violations wherever they occur. The UPR also aims to provide technical assistance to States and enhance 1 4

9 their capacity to deal effectively with human rights challenges and to share best practices in the field of human rights among States and other stakeholders. When will States have their human rights records reviewed by the UPR? During the first cycle, all UN Member States have been reviewed, with 48 States reviewed each year. The second cycle, which officially started in May 2012 with the 13th session of the UPR Working Group, will see 42 States reviewed each year. The reviews take place during the sessions of the UPR Working Group (see below) which meets three times a year. The order of review remains the same as in the first cycle and the number of States reviewed at each session is now 14 instead of 16. Who conducts the review? The reviews are conducted by the UPR Working Group which consists of the 47 members of the Council; however any UN Member State can take part in the discussion/dialogue with the reviewed States. Each State review is assisted by groups of three States, known as troikas, who serve as rapporteurs. The selection of the troikas for each State is done through a drawing of lots following elections for the Council membership in the General Assembly. What are the reviews based on? The documents on which the reviews are based are: 1) information provided by the State under review, which can take the form of a national report ; 2) information contained in the reports of independent human rights experts and groups, known as the Special Procedures, human rights treaty bodies, and other UN entities; 3) information from other stakeholders including national human rights institutions and non-governmental organizations. How are the reviews conducted? Reviews take place through an interactive discussion between the State under review and other UN Member States. This takes place during a meeting of the UPR Working Group. During this discussion any UN Member State can pose questions, comments and/or make recommendations to the States under review. The troikas may group issues or questions to be shared with the State under review to ensure that the interactive dialogue takes place in a smooth and orderly manner. The duration of the review was three hours for each country in the Working Group during the first cycle. From the second cycle onwards the time has been extended to three hours and thirty minutes. Can Civil Society Organizations (CSOs) participate in the UPR process? Yes. CSOs can submit information which can be added to the other stakeholders report which is considered during the review. Information they provide can be referred to by any of the States taking part in the interactive discussion during the review at the Working Group meeting. CSOs can attend the UPR Working Group sessions and can make statements at the regular session of the Human Rights Council when the outcomes of the State reviews are considered. OHCHR has released "Technical guidelines for the submission of stakeholders. 5

10 What human rights obligations are addressed? The UPR will assess the extent to which States respect their human rights obligations set out in: (1) the UN Charter; (2) the Universal Declaration of Human Rights; (3) human rights instruments to which the State is party (human rights treaties ratified by the State concerned); (4) voluntary pledges and commitments made by the State (e.g. national human rights policies and/or programmes implemented); and, (5) applicable international humanitarian law. What is the outcome of the review? Following the review by the Working Group, a report is prepared by the troika with the involvement of the State under review and assistance from the OHCHR. This report, referred to as the outcome report, provides a summary of the actual discussion. It therefore consists of the questions, comments and recommendations made by States to the country under review, as well as the responses by the reviewed State. How is the review adopted? During the Working Group session half an hour is allocated to adopt each of the outcome reports for the States reviewed that session. These take place no sooner than 48 hours after the country review. The reviewed State has the opportunity to make preliminary comments on the recommendations choosing to either accept or note them. Both accepted and noted recommendations are included in the report. After the report has been adopted, editorial modifications can be made to the report by States on their own statements within the following two weeks. The report then has to be adopted at a plenary session of the Human Rights Council. During the plenary session, the State under review can reply to questions and issues that were not sufficiently addressed during the Working Group and respond to recommendations that were raised by States during the review. Time is also allotted to member and observer States who may wish to express their opinion on the outcome of the review and for NHRIs, NGOs and other stakeholders to make general comments. What steps are taken as follow up to the review? The State has the primary responsibility to implement the recommendations contained in the final outcome. The UPR ensures that all countries are accountable for progress or failure in implementing these recommendations. During the second review the State is expected to provide information on what they have been doing to implement the recommendations made during the first review as well as on any developments in the field of human rights. The international community will assist in implementing the recommendations and conclusions regarding capacity-building and technical assistance, in consultation with the country concerned. If necessary, the Council will address cases where States are not co-operating. What happens if a State is not cooperating with the UPR? The Human Rights Council will decide on the measures it would need to take in case of persistent non-co-operation by a State with the UPR. 6

11 2. Engagement of Cambodian Civil Society Organizations in the UPR Process Consultation Workshop on UPR and Stakeholders Report Writing for CSOs CHRAC in collaboration with the Office of the High Commissioner for Human Rights in Cambodia (OHCHR) and the NGO Forum on Cambodia jointly organized a Consultation among CSOs on the 2 nd Cycle of the UPR Process on 30 April 2013 at Diakonia Phnom Penh Center, Phnom Penh. There were 80 participants attending this Consultations coming from the Cambodia Human Rights Committee (CHRC) (4 persons), Media (2), Foreign embassy representatives (4, UK, Japan, EU, Germany), Donors (6), community representative and Indigenous community (4), and local NGOs Representatives (60). There are 53 men and 27 women. This consultation was made possible with the fund from USAID/EWMI and support from the NGO Forum on Cambodia. Ms. Cybele Haupert, H.E. Mr. Nou Sthapatia, Mr. Chhith Sam Ath, Mr. Neil Weinstein and Mr. Sok Sam Oeun Objectives: The objectives of this Consultation were to increase the understanding among the CSOs Sector on the 2 nd cycle of the UPR, the 2009 UPR recommendations and its follow-up mechanisms. It is envisaged that this will ultimately lead to increasing the level of engagement and dialogues between the State, Civil Society and other stakeholders on the UPR process in Cambodia. These objectives were raised by CHRAC Chairman Mr. Sok Sam Oeun. Discussion: During the one-day workshop, guest speakers from CHRAC, OHCHR and various civil society organizations (CSOs) shared their expertise and experience in the UPR process. The workshop also provided a forum for participants to focus particularly on the CSOs preparation and action plan for their submission of individual or joint reports to the UPR working group (the so-called stakeholders reports). The forum also allowed better coordination between different human rights issues/themes to be covered in the CSO sectors according to each organization s own expertise and experiences. Especially pursuant to the 91 recommendations made by the HRC to the Royal Government of Cambodia in 2009 in order to examine their progress, challenges and propose new issues and recommendations to the attention of the Council. The deadline for the CSOs to submit their reports/submissions to the OHCHR Geneva is by 24 June 2013 whereas the State Report that will be submitted by the Government is due on 28 October H.E Nou Sthapatia, representative of H.E Om Yien Teang, Chairman of the 7

12 Cambodia Human Rights Committee (CHRC), expressed and stressed the government s sincere desire to participating in this consultation and have CSOs engaged in this process. He is looking forward to CSOs providing independent information about the human rights situation in Cambodia. Finally H.E Nou Sthapatia stressed the importance of government-csos cooperation and stated that when the CHRC organizes a Stakeholders Consultation later next months, it will also invite the CSOs to attend and give feedback on the report. At the meantime, CHRC is coordinating the finalization of the State s report with involvement of all relevant ministries and institution regarding their implementation of respective recommendations (out of the 91 UPR recommendations) to update, and actions plan to complete them for the 2 nd Cycle State s report to be submitted to the Council. Mr. Tek Vannara (moderator), Mr. Ou Virak, Mr. Oeung Jeudy and Ms. Cybele Haupert (Speakers) The speakers from OHCHR (Ms. Cybele Haupert and Mr. Vong Ton) presented the process of UPR in 2 nd cycle and how important for CSOs engagement in this process. They also highlighted the fact that CSOs have different focuses on human rights works, it is better to coordinate among themselves in order to achieve better outcomes if they want to contribute submissions to this process. Two Cambodian speakers respectively from Cambodian Center for Human Rights (CCHR) Mr. Ou Virak and from CHRAC Mr. Oeung Jeudy shared their experiences and lessons learnt from the first cycle UPR process. Mr. Virak highlighted his coordination experience on the submission of the issue of freedom of expression in Cambodia and Mr. Jeudy discussed his organization s experience in submitting its report on the issue of legal and judicial reforms. Both were in favour of the fact the CSOs both national and international should be actively engaged in this UPR process which were not just as a part of their advocacy works but also it gives better informative and insightful human rights perspectives about Cambodia to the UN Human Rights Council, which eventually helps this body to make a series of recommendations. In conclusion, Mr. Run Saray, CHRAC Representative said that the Consultation was a crucial and timely setting for CSOs to be aware of the current UPR process and for them to actively engage and participate in the process through their independent views submissions. At the end of the Consultation, the participants were able to discuss the different thematic human rights issues to be contributed and written by some interested CSOs/NGOs. Consultation Follow-up among the CSOs CHRAC collaborates with OHCHR to jointly organize another consultation follow-up of UPR s Submission Preparation at Khmer Surin restaurant. Mr. Sok Sam Oeun, CHRAC Chairman said in his opening remark that this follow-up aimed at reviewing the draft submissions by the interested CSOs in accordance with the OHCHR s format or standard and at providing feedback 8

13 or technical supports from the other participating CSOs to make sure that those submissions are prepared in a good manner and meet the requirements of the OHCHR. During this meeting, more than 30 national CSOs representatives attended and updated of their preparations with regard to their respective thematic human rights issues. In the end, we could develop a table of the thematic issues and involved with many CSOs and they were committed to contribute their submissions to the HRC by the deadline of 24 June In this process CHRAC and OHCHR has played an important role to facilitate, coordinate and provide technical assistance in terms of the format of the CSOs Submissions and how they can submit the submissions. All submissions by the CSOs shall be submitted to 9

14 II. UPR SUBMISSIONS BY CIVIL SOCIETY ORGANIZATIONS (CSOs) Despite the fact that many CSOs want to engage in the UPR process after the Consultations, there are a large number of national and international CSOs inside and outside Cambodia are committed to submit their submissions the 18 th HRC Session. At least 16 thematic human rights issues are identified during the Consultation and coordinated by CHRAC and OHCHR as follows: 1) Freedom of Expression 2) Legal and Judicial Reform 3) Fair Trial Right 4) Rule of Law and Torture 5) Peaceful Assembly Law 6) Access to Information 7) Children Issue 8) Youth Issue 9) People with Disability 10) Land, Housing Rights and Evictions 11) Right to Participation in Elections 12) Labor Rights 13) Peace and Security 14) Minority Rights 15) LGBTIQ Issue 16) Independence of Media 17) Multi-Thematic Submissions 18) HIV, Sexual and Reproductive Rights Issue The interested CSOs/NGOs in each thematic human rights issue have further consulted among their networks and partners in order to prepare their joint submissions for UPR. 10

15 1. FREEDOM OF EXPRESSION ISSUE Submission to the UN Universal Periodic Review of Cambodia For consideration at the 18 th session of the UN working group in June 2013 Introduction 1. The Cambodian Center for Human Rights (CCHR), PEN International, Cambodian PEN, International Publishers Association (IPA), ARTICLE 19, the Cambodian Center for Independent Media (CCIM), the Committee for Free and Fair Elections in Cambodia (COMFREL) and the Southeast Asian Press Alliance (SEAPA) welcome the opportunity to contribute to the second cycle of the UPR process of the Kingdom of Cambodia (Cambodia). This submission focuses on Cambodia s compliance with its international human rights obligations in respect to freedom of expression. 2. Rather than improving, the human rights situation in Cambodia has continued to deteriorate since 2009, and in particular we are concerned about the state of freedom of expression. Since Cambodia s last UPR review, the Royal Government of Cambodia (RGC) has continued to stifle free expression and to suppress dissent with impunity. The RGC routinely targets journalists, non-governmental organizations (NGOs) and human rights defenders (HRDs) with legal and physical threats, which instill a deep sense of fear within the population and create a climate of self-censorship. This submission will examine the following key issues: Legislation restricting the right to freedom of expression and information Freedom of information law Freedom of media Freedom of the Internet Freedom peaceful assembly and association 11

16 Legislation restricting the right to freedom of expression and information 3. Despite guarantees within the Cambodian Constitution of the right to freedom of expression (Article 41) and the right to political participation (Article 35), and recognition by the Constitutional Council in 2007 that international human rights treaties form part of domestic law, several Cambodian national laws actively restrict the right to freedom of expression, with vague and overboard language that allows for their arbitrary enforcement against critics of the government. 4. A number of provisions of Cambodia s 2009 Criminal Code (the Penal Code) are also used to stifle criticism of the government. Defamation remains a criminal offense (Article 305), despite long-standing promises from Prime Minister Hun Sen that he would decriminalize defamation. 1 Penalties include significant fines, and non-payment of fines can result in prison sentences under Article 525 of the Code of Criminal Procedure of the Kingdom of Cambodia. In January 2011, human rights worker Sam Chankea was found guilty of defamation and ordered to pay a hefty fine as a result of speaking out about a land conflict during a radio interview. The Cambodian authorities regularly threaten those who speak out with defamation and related charges, even if these charges are ultimately not followed through. 5. In February 2012, NGO worker Soum Chankea was summoned for questioning relating to a potential charge of slanderous denunciation (under Article 311 of the Penal Code). The potential charge came as a result of a complaint by a powerful and well-connected individual, Oum Socheath the head of a provincial branch of the Cambodian Mine Action Center. Oum Socheath had been accused of sexual harassment by a waitress and Soum Chankea had assisted the waitress in filing a complaint against him. As a result, Oum Socheath filed a counter complaint against Soum Chankea, but it was eventually dropped by the Prosecutor on 8 May Article 502 of the Penal Code criminalizes insult addressed to a public official acting on behalf of his or her office, and Article 523 outlaws discrediting judicial decisions. Both provisions severely restrict the right to freedom of expression, and contradict the principle that public officials, including the judiciary, should legitimately be subject to criticism and political opposition and tolerate higher level of scrutiny than ordinary citizens. These provisions are contrary to Cambodia s constitutional and international obligations, and have a chilling effect on freedom of expression in the country. 7. Article 495 of the Penal Code incitement to commit a felony is regularly abused in order to silence human rights defenders, NGO workers and other individuals/groups that speak out against the authorities or that attempt to educate the Cambodian public on their human rights. Ou Virak, president of CCHR, was summoned for questioning by the Ratanakkiri Provincial Court in October 2012 on bogus charges of inciting members of an ethnic minority group to violently protest a land eviction. The complaint dated back to CCHR human rights training activities held in the area in Two other human rights workers were also summonsed on the same charge, as well as a journalist based in Ratanakkiri (in the Northeast of Cambodia) who had been reporting on the land conflict, Ratha Visal. 8. The crime of disinformation - under Article 62 of the United Nations Transitional Authority in Cambodia Criminal Code (the UNTAC Code) - continues to be abused by the judiciary as a tool to stifle freedom of expression. On 23 September 2010, political opposition leader Sam 1 CCHR, An Overview of Cambodian Laws Relating to Freedom of Expression and a Summary of Recent Case Examples to Show how Laws and Used and Abused to Stifle Dissent < 12

17 Rainsy was charged with disinformation for disseminating a map that was purported to show evidence of Vietnamese border incursions. As a result, the Phnom Penh Court of First Instance ruled that Sam Rainsy was guilty of damaging the reputation of the ruling party. Combined with additional charges of forging public documents, Rainsy was sentenced to a total of ten years in prison. In addition, he was ordered to pay 5 million riels in fines and 60 million riels in compensation to the state. 2 With the enactment of the Penal Code in December 2010, many of the UNTAC Code provisions were suspended. However, the crime of disinformation continues to apply under the UNTAC Code because it has not been expressly repealed. Maximum penalties provided for disinformation under the UNTAC Code include imprisonment for 3 years and a fine of 10 million riels In June 2013, the RGC passed the Denial of Crimes Committed During Democratic Kampuchea Law (the Khmer Rouge Crimes Denial Law), which imposes penalties of up to two years imprisonment and up to $1000US in fines for denying crimes that were committed under the Khmer Rouge. Holding an individual criminally liable for denials of historical events amounts to an unacceptable restriction on the right to freedom of expression. Considering the lack of a pressing social need for the suppression of historical debate, the law is not necessary in a democratic society. 10. The Khmer Rouge Crimes Denial Law is widely seen as yet another tool to silence dissent and also a way for the ruling party to score points before the National Elections on 28 July. It is worth noting that the Law was hurriedly drafted in response to alleged comments made by acting opposition leader Kem Sokha, and was debated and passed one week later in parliament. There were no opposition parliamentarians present to debate the law as they had recently been stripped of their positions based on a vague provision in the Law on the Election of the Members of the National Assembly. The provision pertains to the fact that the parliamentarians joined a new party the Cambodian National Rescue Party (CNRP) when the two main opposition parties formed an alliance. It states that when a parliamentarian leaves a party, he/she should be replaced by another candidate from that party up to six months before a national election. In this case the CNRP candidates were removed from their positions only eight weeks before the election and it remains unclear whether removing these elected representatives from parliament was in any way justified under the law. Freedom of Information Law 11. The RGC have failed to adopt a Freedom of Information law (FoI) to implement the constitutional right to information, despite commitments dating back to This is in spite of the political opposition submitting draft FoI laws to the National Assembly in 2010, 2012, and The last draft was dismissed by the ruling party on the basis that it was unconstitutional, despite international experts finding it to contain many of the main features of an effective FoI law. 2 3 CCHR, Analysis of the Legal Grounds for Conviction and the Fairness of Judicial Proceedings in the Criminal Cases Against Sam Rainsy (February 2011) < CCHR, An Overview of Cambodian Laws Relating to Freedom of Expression and a Summary of Recent Case Examples to Show How Laws are Used and Abused to Stifle Dissent (Briefing Note) (30 October 2012) < 13

18 Freedom of the media 12. In the previous UPR cycle, the RGC committed to ensuring freedom of expression and press freedom, however, neither are a reality in Cambodia despite guarantees of these rights under the Constitution (Article 41). 13. Throughout all of 2012 and 2013 there has been a notable crackdown on media freedom, connected to the desire of the RGC to control media content in the run up to the commune elections (held in June 2012) and the upcoming National Assembly elections, to be held in July Media ownership and lack of independence from government influence 14. Print media, radio and television are subject to the most stringent levels of control and censorship in Cambodia. All 11 Cambodian television stations, most radio stations, and the foremost Cambodian newspapers are either owned or controlled by the current ruling party, the Cambodian People s Party (CPP), or individuals aligned with the ruling party, 4 thereby ensuring the RGC s control over the dissemination of information Given the concentration of print media to urban centers within Cambodia, the radio is very important in reaching rural communities. Of the 160 radio stations officially registered with Cambodia s Ministry of Information, 6 most are CPP-influenced. 7 There are only three independent radio stations in the country Sahrika, Beehive and Voice of Democracy. 16. United States-funded news agencies Radio Free Asia (RFA) and Voice Of America (VOA) were summoned to a closed-door meeting with the RGC in October 2012 to discuss the stations goals, news content and professionalism. Both outlets are a rare source of independent Khmerlanguage news in Cambodia. An RGC spokesperson said that the meeting was an attempt to gain cooperation from the news agencies, which rent radio airtime from independent radio stations and also publish English and Khmer language news online. Lack of plurality in election coverage/unequal access to media by political parties 17. The Committee for Free and Fair Elections in Cambodia found that during the commune election period (18 May 4 June 2012), the CPP was the only party of the 10 contesting the elections to receive any positive coverage in the media, while the SRP and the Human Rights Party (HRP) were the only parties that received negative coverage. The CPP received 7,412 minutes of broadcasting coverage, of which 70 minutes were positive and the remainder was neutral. The SRP, on the other hand, received 5,009 minutes of coverage, of which none was positive, 283 minutes were negative and the remainder was neutral. Likewise, the opposition HRP received 5,857 minutes of coverage, of which none was positive, 848 minutes were negative and the remainder was neutral. The SRP and the HRP are the main opposition parties, which formed an alliance in 2012 to form the new CNRP The Committee on Free and Fair Election in Cambodia (COMFREL), Cambodian Democracy, Elections and Reform: 2009 Report (February 2010) < Final.pdf>. CCHR, New Media and the Promotion of Human Rights in Cambodia (Report) (July 2012) 6 < CCIM, Challenges for Independent Media Development in Cambodia (Report) (March 2013) 10 < CCHR and others, Cambodia gagged: Democracy at Risk? (Report) (September 2010) 20 < 14

19 18. Similar unequal and unfair media coverage of opposition parties can be seen in the run up to the National Assembly elections scheduled for 28 July For example, on the morning of 20 May 2013 the CNRP held a mass demonstration in Phnom Penh s Freedom Park to call for reforms to the National Election Committee. Approximately 3,000 party supporters attended and marched through the city to the European Union Delegation where acting leader Kem Sokha met with the EU ambassador. Despite its significance, the demonstration was mysteriously absent from the majority of news reported that day and the next day. 8 According to one reporter working for a Khmer language newspaper, he had written an article about the demonstration, which was uploaded onto the newspaper s website but then mysteriously removed not long after. On the contrary, negative claims about the CNRP instigated by the CPP, are widely disseminated. 19. During the commune elections, the Ministry of Information ordered five radio stations to cease airing programming by VOA and RFA, two independent broadcasters that often disseminate news critical of the RGC. Voice of Democracy s independent Sarika FM was one of the stations shut down during this time. Restrictive Press Law 20. At Cambodia s 2009 UPR, the RGC accepted the recommendation to ensure freedom of expression and opinion by amending the press law. However, the Press Law of 1995 has not yet been amended and therefore continues to place additional constraints on the free expression of journalists. 21. Provisions of particular concern under the Press Law include several articles imposing impermissible content restrictions. This includes content that: may affect the public order by inciting directly one or more persons to commit violence (Article 11); may cause harm to the national security and political stability (Article 12); or affects the good custom of society (Article 14). 22. All of the provisions involve financial sanctions and Article 12, if breached, allows for the possibility of suspending publications for up to 30 days without opportunity to appeal. 23. These provisions are vague and are therefore open to arbitrary enforcement. Moreover, political stability and the good custom of society are not legitimate bases for restricting the right to freedom of expression under international law. There is also no pressing social need to create separate content-based speech offences for the media as opposed to laws of general application. 24. The Penal Code itself also establishes a carve-out with regards to the application of criminal sanctions where the media are charged with defamatory offenses. Articles 306, 308 and 49 stipulate that defamation, public insult and incitement, when perpetrated by professionals working in print media, should be prosecuted under the Press Law. However, it remains to be seen how these provisions will be applied in practice and one regular complaint from media professionals is that the provisions of the Penal Code are used to threaten them and restrict their work, instead of the less harsh Press Law provisions. 8 Kuch Naren and Lauren Crothers, News of Opposition Met with Media Blackout, The Cambodia Daily (22 May 2013) < 15

20 25. The Press Law must be amended to remove content-based restrictions, both in the civil and criminal law. There is no pressing social need in a democratic society to provide content-based restrictions beyond those of general application to media and non-media alike. Threats against the media 26. In the previous UPR cycle, the RGC accepted the recommendation to adopt legislative measures to protect journalists. Since then, there have been numerous attempts to restrict traditional media through the use of threats and intimidation aimed at journalists, editors and media outlets. Between January 2010 and April 2013, 85 cases of media harassment, including arrests of journalists, prevention of reporters from entering public events, confiscating or damaging journalists property, criminal charges and even violence, were reported Mam Sonando, owner of independent radio station Beehive, was found guilty of incitement and insurrection on 1 October 2012 and sentenced to 20 years in prison. The lack of evidence to warrant a conviction indicates that he was targeted as a result of the critical stance of radio Beehive in reporting independent news, and of Mam Sonando s role as a journalist and human rights defender. 10 The charges against Mam Sonando were reduced to a five year suspended sentence on appeal, in March However, he remains under judicial supervision. 28. Hang Serei Odom was a reporter for a small provincial publication, Vorakchun Khmer, in Ratanakkiri who was reported to have been found bludgeoned to death in the trunk of his car on 11 September Hang Serei Odom had reported on illegal logging in the area and its links to powerful public officials. The investigation into his murder resulted in the charging of two individuals; however it is believed by rights organizations working in the province that there were more people involved. The investigation was recently deemed inadequate by a judge at the provincial court and the case has since been reopened. Hang Serei Odom was the 11th Cambodian journalist killed, seemingly on account of his work, since All the other cases have been met with impunity. 29. Harassment of the press has contributed to the emergence of a culture of self-censorship among media professionals, who avoid publishing information that the RGC may consider offensive or politically sensitive. 11 Observers have noted that there is an active policy on the part of publishers and editors to cover less sensitive and often less interesting stories in order to stay out of harm s way Publishers and authors operate in a similarly repressive environment and exercise self-censorship. In July 2010, Cambodian Education Minister, Im Sethy, banned volumes of a high school textbook, because it was deemed unsuitable due to its political content, including references to corruption in government and human rights abuses inhibiting development. Following the ban, author Pen Puthsphea received death threats and was forced to go into hiding. He subsequently fled the country and remains in exile. Freedom of the Internet 31. In the previous UPR cycle, the RGC accepted the recommendation to develop an action plan for ensuring free access to electronic media and liberalizing electronic media rules. Internet See CCHR Media Harassment Map: For more detail on the case see CCHR, Legal Analysis of the Charging and Sentencing of Cambodian Journalist and Human Rights Defender Mam Sonando (February 2012) < Supra note 7. Soldiers for free speech The Phnom Penh Post, 6 January

21 connection has become significantly less expensive in recent years and the number of Internet Service Providers in Cambodia has now risen to 27. As a result, the Internet is being used more and more by journalists, NGOs, bloggers and others to discuss and disseminate information on social and political issues. The Internet has become a valuable tool for the promotion and protection of human rights in Cambodia and for encouraging political participation, especially amongst the youth. 32. Since 2009, there have been increased attempts by the RGC to censor online content and to restrict Internet access. In May 2012, the RGC announced that it was in the process of drafting a Cyber Law in order to prevent ill-willed people from spreading false information. 13 The draft law has not been made public, and there has been no consultation with civil society regarding its drafting. It is therefore not clear what kind of provisions it will contain, although it is widely expected to contain restrictive provisions for freedom of expression. 33. On 19 January 2011, BlogSpot sites in Cambodia were blocked following an order from the Ministry of Interior to all Cambodian Internet Service Providers. The sites, including controversial blog KI-Media, which regularly posts harsh criticisms of the RGC and of the Prime Minister himself, were inaccessible to users of EZECOM service provider for a number of weeks. In February 2011, there was a new wave of blockages affecting KI-Media, Khmerization a similar blog and the blog of Khmer political cartoonist Sacrava, as well as five others. On 10 February 2011, So Khun, Minister for Post and Telecommunications, met with mobile phone operators to seek their cooperation in blocking certain sites that affect Khmer morality and tradition and the government. The blockage of the above websites, although it was short-lived (approximately three weeks for the majority of Internet providers), was allegedly in response to a KI-Media posting from December 2010 that referred to key RGC officials as traitors. 34. Phel Phearun, a teacher, criticized the traffic police in a post on his Facebook account on 24 January His criticism attracted a lot of comments, leading to the post becoming an online commentary on police corruption in Cambodia. Approximately one month later, Phel Phearun received a letter from the Phnom Penh municipal police requesting that he appear for questioning regarding a potential defamation charge in relation to his Facebook activity. Although he was not charged, the police questioning was clearly an intimidation tactic to encourage self-censorship in future. Freedom peaceful assembly and association 35. In the previous UPR cycle, the RGC agreed to respect the freedom of expression and association rights of NGOs. However, in 2011, the RGC drafted the restrictive Law on Associations and Non-Governmental Organizations (LANGO), which set out discriminatory criteria for foreign associations and NGOs, and established complex and onerous registration procedures. The draft also granted the RGC power to dissolve NGOs on various vague grounds that are open to broad interpretation and manipulation. The law was shelved at the end of 2011 as a result of national and international pressure, however it has not been completely dropped and there are fears that it will reappear on the legislative agenda after the 2013 National Assembly elections. Moreover, the RGC has not been discouraged from using other legal measures to silence NGOs and NGO staff members The ill-willed spark cyber law: officials The Phnom Penh Post (24 May 2012) < CCHR, LANGO 4 th Draft Analysis (18 December 2011) < 17

22 36. One example of illegitimate restrictions of NGOs activities is the 6-month suspension imposed by the Ministry of Interior (MoI) on Cambodian land-rights NGO, Sahmakum Teang Tnaut (STT), in August Established in 2005, STT had been a vocal critic of land grabbing and forced evictions in Phnom Penh and the Cambodian provinces. 15 According to the MoI, the suspension was due to STT s failure to modify their leadership structure and revise their statutes - the MoI had directed STT to implement these reforms during a meeting on 14 July However, STT had followed these instructions within the time frame set by MoI and there is no existing law that establishes suspension on the grounds of procedural failure. The MoI offered an alternative explanation on 13 August and stated on their website that STT operated and incited people to oppose national development. 16 STT reestablished operations after its six-month suspension. 37. The authorities regularly disrupt legitimate NGO activities, such as trainings and meetings. In July 2012, a joint training on land rights organized by CCHR and the Cambodian Human Rights and Development Association (ADHOC) in Ratanakkiri province was broken up by the village and commune chiefs and several police officers, one of whom was carrying an M-16 rifle. CCHR and ADHOC originally ignored the disruption but when the authorities threatened staff safety, they decided to put an end to the meeting. This is only one example of what is a semi-regular occurrence. The Law on Peaceful Assembly adopted in 2009 exempts NGOs from having to seek permission for these types of training activities. Unfortunately local authorities often disregard the law, or are unaware of its provisions, and complain when NGOs do not ask their permission to carry out these activities in advance. Judicial harassment of NGO workers under criminal law 38. In August 2012, a senior investigator at ADHOC, Chan Soveth, was summoned for questioning by the Phnom Penh Municipal Court in relation to assistance he had provided to a man he believed to be a land rights activist. ADHOC received reliable information that if Chan Soveth appeared for questioning in August, he would have been arrested. They therefore requested that the questioning be delayed. Chan Soveth eventually appeared in front of the judge on 24 December 2012 and the charges against him were finally dropped on 8 February Nevertheless, the charges significantly impeded Chan Soveth s human rights work and served as a warning to other human rights workers in Cambodia. 17 Chan Soveth is currently being investigated once again on charges of incitement based upon his human rights work investigating land grabbing in Pursat province. Politically motivated charges against HRDs 39. While the authorities continue to judicially harass RGC critics using these restrictive and vague laws, more recently the charges brought against HRDs in attempt to silence them are not always directly related to their activities as HRDs, but are based on fabricated or exaggerated events. 40. In addition to the case of Mam Sonando, as mentioned above, housing rights activist Yorm Bopha, representative of the Boeng Kak community, is currently serving a two-year prison sentence as a result of her activism. Yorm Bopha was charged with intentional violence with aggravating circumstances under the Penal Code on 4 September 2012, in relation to an alleged assault on two motorbike drivers, which reportedly took place near to her house on 7 August CCHR, Suspension of Prominent Land Rights NGO Confirms Civil Society Fears Regarding Forthcoming NGO Law < CCHR, Case Study Series: Sahmakum Tean Tnaut ( STT ) (September 2011) < CCHR, CCHR Briefing Note-Freedom of Expression (February 2013) < 18

23 2012. Yorm Bopha became a thorn in the side of the authorities when she came to the forefront of a campaign to free thirteen of her fellow activists (the Boeng Kak 13) who were arrested, charged and convicted for peacefully protesting in May Yorm Bopha was frequently threatened by police and told that she would be next to be imprisoned. The case against Yorm Bopha was extremely weak: the prosecution witnesses and civil parties frequently contradicted each other and changed their stories, and yet these testimonies were the only proof of Yorm Bopha s alleged guilt. 18 Despite a blatant lack of evidence against her, Yorm Bopha was convicted on 27 December 2013 and sentenced to three years in prison. On 13 June 2013 her conviction was upheld by the Court of Appeal in Phnom Penh and one year of her three year sentence was suspended. She was taken back to prison immediately to serve the remainder of her sentence. Impunity for violence against HRDs 41. One of the most significant cases of violence against HRDs and NGO workers in recent years is the murder of prominent Cambodian grassroots environmental activist Chut Wutty, Director of the Natural Resources Protection Group, who was fatally shot in Koh Kong province by military police while photographing illegal logging on 26 April Chut Wutty was escorting two journalists from The Cambodia Daily to an illegal logging site when his vehicle was stopped by military police, who ordered him to hand over the memory card from his camera; he refused to do so, and was shot dead. A military policeman, In Rattana, was also killed by gunfire in the incident. 42. There has been no thorough investigation into the killing of Chut Wutty. Instead, the court proceedings that followed centered only on the death of In Rattana, who had been blamed for shooting Chut Wutty before he himself was killed. On 22 October 2012, the Koh Kong provincial court judge concluded that In Rattana had been killed by a shot from his own rifle during a struggle with a private security guard employed by Timber Green Logging Co., who was found to be attempting to disarm In Rattana. The security guard was sentenced to two years in prison with three-quarters of the sentence suspended. Recommendations 43. Based upon the above observations, CCHR, PEN International, Cambodian PEN, IPA, ARTICLE 19, CCIM, COMFREL and SEAPA call upon the Cambodian government to significantly improve the overall conditions for freedom of expression in the country. In order to do so, the RGC should: Amend unconstitutional laws that violate the right to freedom of expression: - Review all laws affecting freedom of expression for compliance with the Constitution and international standards. Those that fail to meet the standards should be repealed or amended as necessary to remedy the problem; - Decriminalize defamation (Article 305 of the Penal Code); - Repeal the offence of the undermining of dignity of holders of public office (Article 502) and the discrediting of judicial decisions (Article 523) as these are incompatible with international freedom of expression standards; - Amend provisions in the Penal Code relating to malicious denunciation (Article 311) and incitement to commit crimes (Article 495) in order to clear up vague terminology and to ensure that these provisions may not be misused to stifle legitimate expression; 18 For more detailed information on this case please see CCHR, Legal Analysis of the Charging and Sentencing of Cambodian Land Rights Activist Yorm Bopha (June 2013) < 19

24 - Prevent all public bodies from bringing defamation actions, either through criminal complaints or through civil actions; - Repeal all content-based offences in the Press Law. Set up the infrastructure for and adopt comprehensive freedom of information law and policies: - Commit to debating the draft FoI law proposed by the SRP at the National Assembly, and ensure the meaningful participation of civil society in this process; - Ensure that the FoI law complies with international standards on the right to freedom of information; - Ensure that the FoI law applies to all branches and levels of government, including the judiciary, as well as private bodies carrying out public functions or receiving public funds; - Ensure that journalists have access to important public information from government bodies and that this information is delivered in a timely manner; - Ensure that all Ministries and public bodies respect the principle of maximum disclosure (presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances) and obligation to publish (to disseminate widely documents of significant public interest, subject only to reasonable limits based on resources and capacity). Ensure the independence of media from political influence, ensure editorial independence, and promote media pluralism: - Ensure the independent regulation of broadcast media; - Allow self-regulation of the printed media independent of government influence in order to bring about a pluralistic media environment and to promote professionalism and impartiality in journalists and other media professionals; - Commit to opening up media licensing in order to increase plurality of media ownership; - Repeal content-based restrictions in the Press Law and guarantee editorial independence; - Ensure equal access to the media of political parties in order to allow for free and fair elections to take place. Stop harassment of journalists, media workers and human rights defenders and end impunity for violations: - Address the current pattern of harassment of NGO workers, writers, journalists and HRDs and take effective measures to prevent violence and harassment against them. - Tackle impunity in cases of harassment of NGO workers, writers, journalists and HRDs: when such acts of violence or harassment do occur, ensure that all cases are speedily, independently and effectively investigated and that perpetrators and instigators are brought to justice; Promote Internet freedom: - Actively work to increase access to the Internet in Cambodia, reducing prices and ensuring the necessary infrastructure exists in more remote areas; - Seek civil society input on the Cyber Crimes Law and ensure that the law complies with international human rights standards and does not contain any vague or restrictive provisions that could jeopardize online freedom; - Refrain from blocking websites, which should always be considered a disproportionate measure because of associated risks of over blocking. In addition, and in any event, any such order should be made, if at all, only by a court or other independent adjudicatory bodies. 20

25 Respect the right to freedom of assembly and association and recognize the importance of a diverse civil society in a democracy: - Amend the LANGO and abolish restrictive and onerous regulations and registration provisions, which could stifle smaller local organizations, as well as international organizations operating in Cambodia; - Ensure that the LANGO is clearly worded and specifically sets out the grounds on which an organization could be denied registration. There should also be a provision to allow all organizations local and international to appeal decisions to reject their registration, based on objective criteria; - Ensure that the authorities are aware that no permission is needed for CSOs to hold meetings/forums/workshops and that they should be allowed to do so freely. 21

26 2. LEGAL AND JUDICIAL REFORM ISSUE JOINT SUBMISSION TO HUMAN RIGHTS COUNCIL SUBMITTED BY: CAMBODAN HUMAN RIGHTS ACTION COMMITTEE (CHRAC) A COALITION OF 21 NGOs MEMBERS WORKING IN THE FIELD OF HUMAN RIGHTS, DEMOCRACY AND LEGAL AID IN CAMBODIA ADHOC, BCV, CARAM-Cambodia, CDP, CWCC, CHHRA, CCPCR, CKIMHRDA, CSD, GENEROUS, IDA, KID, KYA, KKKHRDA, KSA, KIND, LAC, VIGILANCE, PJJ, HROTP and PDP-Center Contact Person: Mr. Suon Bunsak, CHRAC Executive Secretary Website: chracsecretariat@yahoo.com/suonbunsak@yahoo.com Address: #9 Eo, Street 330, Sangkat Boeung Kengkang III, Khan Chamkarmorn, Phnom Penh, Cambodia 22

27 NGOs Joint Submission to the Universal Periodic Review of the United Nations Human Rights Council Introduction 1. The Kingdom of Cambodia will be under the 2 nd Cycle of the United Nations Human Rights Council s Universal Periodic Review (UPR) in 2014 in Geneva, after the 1 st cycle was concluded in early The Human Rights Council issued 91 recommendations to the Cambodia during the first review and the Cambodia has accepted all of these recommendations. The 2 nd cycle of the UPR in the coming year is a very good opportunity for Cambodia to report on its actions taken and show its commitment to the implementation of those recommendations. 2. During this UPR process, the Cambodian Human Rights Action Committee (CHRAC), 1 a coalition of Cambodian NGOs and associations working in the fields of human rights, democracy and legal aid in Cambodia is tasked to coordinate a joint submission on the issue of legal and judicial reform in Cambodia. This document is the result of that effort. A. Legal and Policy Framework: 3. Legal and judicial reform has been a stated priority of Cambodia since Cambodia established the Council for Legal and Judicial Reform (CLJR) in June of that year, and adopted a legal and judicial reform strategy in The strategy includes a plan of action for legal and judicial reform in Much of the reform plan is aimed at giving expression to the provisions of the Cambodian Constitution. The Constitution is the supreme law of the country and spells out, along with specific provision for various human rights protection, the general conceptual aspiration on the issue of separation of governmental powers and the independence of the judiciary. 4. Article 31 of the Cambodian Constitution provides that the Kingdom of Cambodia shall recognizes and respects human rights as enshrined in the United Nations Charter, the Universal Declaration of Human Rights and all treaties and conventions related to human rights, women s rights and children s rights. The constitutional aspiration is a strong point in ensuring the Kingdom s commitment to uphold and apply human rights treaties 2 it has ratified. The Constitution further recognizes the separation of powers is fundamentally important for the democratic society; the executive, the legislative, and the judiciary and it also states that judicial independence shall be guaranteed by the Supreme Council of Magistracy Furthermore, the National Strategic Development Plan (NSDP) clearly spells out that the issue of legal and judicial reform is very significant to the Cambodian government, and calls for accelerating this reform process among other priorities. In doing so, the CLJR is tasked to implement and monitor the implementation of the Plan of Action of Legal and Judicial Reform and ensure that Joint Monitoring Indicators (JMIs) 4 on the reform are well implemented and to assist the government in addressing the legal and judicial reform issues The NGO members of CHRAC include: ADHOC, BCV, CARAM Cambodia, CCPCR, CDP, CHHRA, CKIMHRDA, CWCC, GENEROUS, HROTP, IDA, KID, KIND, KKKHRDA, KSA, KYA, LAC, PDP, PJJ and VIGILANCE Six human rights treaties (ICCPR, ICESCR, ICERD, CRC, CAT, and CEDAW) have been already ratified by Cambodia. See more on: Articles 128, 130, 132 of the Constitution of the Kingdom of Cambodia (1993) JMIs are agreed by the Cambodian government and the donors on certain indicator that the legal and judicial reform is well implemented. See more: Secretariat of Council for Legal and Judicial Reform: Joint Monitoring Indicators on Legal and Judicial Reform, (April 2009) 23

28 B. Key Issue of legal and judicial reform in Cambodia 6. There are many significant issues concerning the rule of law and judicial reform in Cambodia raised in the Human Rights Council s recommendations during the first UPR cycle. A number of recommendations have been achieved by the Cambodian Government and its relevant institutions; however, there are many recommendations concerning the rule of law and judicial reform remaining to be implemented and these need to be considered by the Human Rights Council during the second cycle of UPR for Cambodia. We therefore will highlight some of these issues, proposing relevant recommendations accordingly. i. Lack of effective law enforcement and absence of independent institutions to protect people s rights 7. Enforcement of human rights in Cambodia is weak. Although the government has shown commitment to strengthen the application of enacted laws, several independent institutions necessary to the protection of people s rights are absent. These include a national human rights institution, a national preventive mechanism following the Paris Principle. To date, we have the Government s Cambodia Human Rights Committee (CHRC) and the Parliament s Human Rights Commissions, but both institutions lack critical elements of independence and has limited real authority to address human rights abuses allegedly committed by State actors. (CHRC is under the direction of the same figure that managed the state s Anti-Corruption Unit, who is a long-standing personal advisor to the Prime Minister.) In practice their competence is limited to acting as intervention bodies in cases where complaints are made to relevant ministries and institutions. Few of the cases they engage in generate results that are satisfactory to victims, despite the complementary efforts by human rights NGOs. The lack of enforcement of human rights provisions could result from many factors, including corruption among officers such as police, military police, soldiers and the judiciary; lack of proper training, insufficient salaries, and systemic weaknesses. Moreover, the fact that many human rights violations occur in contexts where the rights exercised (whether to property, expression, assembly, etc.) are seen as opposing the State s program of economic development. So there is a question of political will. 8. The situation is considered to be critical and alarming for the Cambodian public, civil society and development partners. Although the Government has identified the need to strengthen the judiciary and the rule of law in this country through positive legal and judicial reform strategies, the lack of coordination and the slow pace of their implementation by the Council for Legal and Judicial Reform (CLJR) have impaired movement towards a well-functioning, independent and trusted judiciary in this country. 9. Recommendations: - The Government should continue discussion on the creation of an independent National Human Rights Commission that will deal with human rights issues in the country, supporting the creation of the ASEAN Intergovernmental Commission on Human Rights (AICHR). If this new national human rights body is established, it shall have a mandate to investigate, in close cooperation with civil society organizations, human rights abuse allegations committed by state actors within Cambodia. - The Government shall allocate adequate budgets for proper trainings to law enforcement officers and make further efforts to continue legal awareness of the new laws particularly the new Penal Code, Criminal Procedure Code, Anti-Corruption Law, Civil Code and Civil Procedure Code. Training should specifically include limits on the application of criminal and other legal provisions necessary to respect international human rights standards. Likewise, training on criminal procedure must include international standards that provide 24

29 - - procedural rights and protections to a criminal accused beyond what exists within the fourcorners of that Code. The Government should continue its efforts to promote and protect human rights and to strengthen good governance and respect for the rule of law; continue to strengthen the rule of law and good governance as a means to help enhance human rights promotion and protection within the country pursuant to its international human rights obligations. To provide the protections of further independent institutional mechanisms, the Royal Government of Cambodia should accede, by 30 June 2014, to the First Optional Protocol under the International Covenant on Civil and Political Rights. The Government expressly include in the future iterations of the National Strategic Development Plan (NSDP) for the period (and any successor plan with a different name), as priority objectives, all reform targets that remain less than 100% accomplished in the Legal and Judicial Reform Action Plan, and all the accepted recommendations generated under the UPR that have not been objectively fulfilled. Currently Legal and Judicial Reform component is not incorporated in the current draft of the NSDP ii. Slow progress of adoption of fundamental laws for strengthening the judiciary 10. The NGOs welcome the adoption of Penal Code in 2009 and Anti-Corruption Law in 2010, consistent with the recommendations of Human Rights Council. However, we are disappointed in the slow progress toward adoption of fundamental laws that are meant to guarantee the independence and impartiality of judiciary and help strengthen the legal and judicial reform we suggested in the 1 st cycle of the UPR. These fundamental laws include Law on Organization and Functioning of the Courts and Prosecutions; Law on Amendment of the Supreme Council of Magistracy and Law on Statute of Judges and Prosecutors. Despite the fact that these laws are fundamental to the strengthening of the judiciary and its functional independence, the government has shown little commitment to hasten the adoption of these laws, all of which have remained in draft for many years. 11. By mid-2013, it is reported that these laws have been discussed internally at the Ministry of Justice and the Council for Jurists of the Council of Ministers on the amendment of the drafts, but have not advanced to the National Assembly for its consideration and possible adoption. Along with many other necessary laws and policies pertaining to the legal and judicial reform, the fundamental laws have been expressly included in the Action Plan of the CLJR since 2009, but they have never been made available for wider discussion with the stakeholders. 12. NGOs and international donors have grown frustrated that, despite the government promise to have them passed during the 4 th legislature of the National Assembly the Special Rapporteur s recommendations, these important laws remain in draft. Donor support to the judicial sector has substantially declined, possibly as a consequence of the rate of reform. The lack of these important laws has led to a lack of trust and confidence in justice delivered by the courts to the public which is perhaps why numerous peaceful protests have been conducted by land victim families in front of the Ministry of Justice and at the courts. 5 They have also demanded the judiciary s reform, in order to provide for their independence and effective, equitable law enforcement. 5 For detail of a series of the peaceful protest of Boeung Kak Lake community, visit: 25

30 13. Recommendations: - The [new] Cambodian Government 6 shall hasten the adoption of these three fundamental laws in the first year of the 5 th legislature of the National Assembly in order to ensure the independence and impartiality of the judiciary and create trust among the public; - Civil society shall be widely consulted prior to any adoption of these laws. The draft laws shall be made available for review by lawyers and other legal professionals, civil society and the general public, and for them to make comments and receive responses from government. - The Government shall adopt a Law on Legislation Drafting Process so that the law making is a transparent and participatory process with various stakeholders. The draft of that law shall be made available for review by civil society and the general public, and for them to make comments and receive responses from government. iii. Suppression and Interference by the Executive on the Judiciary 14. The Constitution of the Kingdom of Cambodia recognizes the separation of powers between the executive, the legislative and the judiciary. The Cambodian judiciary, however, has faced many challenges in performing its role as the State s organ to uphold the principle of the rule of law and respecting human rights in this country despite the efforts and contribution that has been made so far. The lack of an enabling environment in such factors as human resources, Government s lack political will and the allocation of adequate national budget to implement the reforms of the law and the judiciary is still the main challenge to enable a strong, competent and independent judiciary that has the trust and confidence among the Cambodian people. Cambodian NGO LICADHO reported that the Cambodian justice system has been used as a useful weapon by the governmental authorities to silence those who assert their rights or question entrenched interests. The report documents that court summons and the threat of arrest have been increasingly used to intimidate human rights defenders Although the Constitution of Cambodia provides for separation of powers between the three main organs of the State, the distinction between these organs in practice is still blurred and the executive branch dominates the judiciary either by the control of resources to the judiciary or in making the appointment to various judicial positions. This remains a key challenge for the country in implementing the rule of law and in promoting and protecting the people s right In particular, there have been a number of cases reported in the media that involve the interference of the executive on the judiciary, both in the domestic courts and the Extraordinary Chambers in the Courts of Cambodia (ECCC). In regard to the cases before the ECCC, particularly Cases 003 and 004, public statements by senior government officials have been identified as interference in their proceedings. 9 The possibly associated fact that these cases have not been moved forward until this time, is telling. Despite the fact that the International Co- Investigating Judge Mark Harmon, has pursued investigation since his appointment to the post in September 2012, there is no full cooperation from his national counterpart Cambodian National Assembly Election will be held on 28 July 2013, therefore the new government shall take into account of all of these recommendations. LICADHO s Report on: Human Rights 2012: A Year in Review (February 2013), p. 7, available at: Surya P. Subedi: Report of the Special Rapporteur on the Situation of Human Rights in Cambodia (16 September 2010), A/HRC/15/16, para. 41, available at: RA-Reports/A_HRC_CMB E.pdf Press Release by International Co-Investigating Judge Siegfried Blunk, 10 October

31 17. Political interference 10 has also been reported with domestic judiciary in such cases as that of President of Democrats Association and Director of Beehive Radio Station Mam Sonando, local ADHOC human rights defender Chan Soveth 11 and other land rights activists and defenders including Boeung Kak and Borei Keila community activists 12. Mam Sonando was sentenced to 20 years in prison on 01 October 2012, in relation to a so-called secessionist movement in Broma village, Kratie province. No credible evidence was ever produced to support the politically motivated charges against him. Mam Sonando should have been acquitted at the Appeal Court; instead it upheld three of the original charges articles 28, 504 and 609 of the Penal Code and added another qualification article 97(6) of the Forestry Law in a move that raises serious concerns with regard to rule of law and rights of the defense. 18. Recommendations: - The Government shall uphold the separation of powers as clearly stated in the Constitution and not exert any political interference onto the judiciary. - The courts shall act independently in conducting the cases without accepting any influence from the government or other external sources. The courts will apply particular scrutiny against interference with regard to cases involving human rights defenders including land rights activists and NGO workers and the opposition activists. - The judicial branch will adopt policies and procedures of zero tolerance to ensure that judges and prosecutors do not engaged in political activity, including support for political (election) campaigns. - In regard to the ECCC s Cases 003 and 004, both the Cambodian government and the United Nations shall avoid and prevent all obstacles and interference in any form, including political, administrative and financial, to enable the Co-Investigating Judges the ability to complete their investigation and eventually make independent judicial decisions about the cases. We urge both national and international co-investigating judges to work in full cooperation, and the Cambodian government should support the full cooperation of the judges, to perform their work professionally and with high integrity pursuant to the 2004 Agreement made between the United Nations and Cambodia on the Establishment of the ECCC. iv. Legal aid provision and access to legal defense 19. We understand that the rights to counsel and legal aid provision are prerequisites for ensuring fair trial rights and specifically equality of arms. The right to counsel & legal representation is guaranteed by the Cambodian Constitution, however in Cambodia, legal aid provision remains a big concern for the poor and others in need, in terms of its accessibility and its quality. These problems are due to several factors, especially the limited number of qualified, licensed lawyers to date. According to 2013 figures, there are 857 lawyers in Cambodia but more than 60% of the lawyers are working in private firms and government institutions; they are not required to provide representation in legal aid cases. Under the Legal and Judicial Reform Action Plan, the Government has paid substantial attention to increasing the quality and quantity of judges and prosecutors through the creation of Royal Training School of Judges and Prosecutors, other training programs for judges and for other judicial professionals in the past years. There has CHRAC s Statement issued on 16 July 2012, available at: f%20mr%20mom%20sonando.pdf ADHOC s Statement: Human Rights Defender Chan Soveth not Detailed after Questioning, available at: and LICADHO s Report on: ADHOC s Statement: Human Rights Defenders and Activists are Under Fire in Cambodia, available at: and 2012 LICADHO s Report available at: 27

32 been no similar government effort to build the strength of the defense bar, so this has contributed to an inequality in arms in itself. 20. In Cambodia, NGOs have played a crucial role in facilitating and providing legal aid to a large population of vulnerable poor, to victims of human rights violations related to land disputes, and human rights defenders (as well as NGO workers), with the exception of a small contribution provided by the Legal Aid Department of the Bar Association of the Kingdom of Cambodia. The Cambodian government apparently accepts that the right to counsel is very important to a fair trial, but it has made no legal aid policy that would enable this right to be fully realized and respected. The Government has contributed a budget of 200 million riel or USD 50,000 per year, specifically for legal aid support, to the Bar Association. 13 This amount substantially limits the legal resources that can be acquired, and presents issues as to how legal services will be contracted, as most criminal cases are defended by legal aid NGOs. Without a functioning legal aid scheme, Cambodian domestic courts will remain inaccessible to those who need assistance of legal aid -- the country s poor and the vulnerable populations. 14 The legitimacy of court proceedings involving these parties will also remain in question. 21. Recommendations: - The Government should initiate a Legal Aid Policy with strong emphasis on the role of the state, including a funding level linked to the budget percentage that funds the Ministry of Justice, in ensuring the right to counsel with the meaningful participation and wider consultation of the CSOs, especially the legal aid NGOs; - The Bar Association should encourage lawyers to take on pro bono cases before and while they are admitted as full members. It should also consider providing legal aid cases to private law firms as precondition of their membership. The Bar Association should consider other policy actions as well, including increasing the percentage of Bar applicants awarded licenses each year, defining roles for paralegals as authorized legal professionals and other actions that may increase resources available for criminal defense; - The Council of Legal and Judicial Reform could consider and put in its action plan the best practices of the ECCC in regard to right to counsel provided to the accused and to the civil parties in close cooperation with the ECCC s Legacy Secretariat, the relevant CSOs and the Bar Association. - The Council for Legal and Judicial Reform shall continue working very closely with relevant Ministries and other stakeholder to continue legal and judicial reforms and harmonization of the laws with international human rights instruments and develop concrete action plan to implement. v. Corruption within the judiciary and limited resources allocation for court officials 22. Trust and confidence in the Cambodian judiciary become lower and lower when it comes to cases that involve human rights defenders and activists. There have been a number of reports on corruption committed within the judiciary system, where all the judges and prosecutors are underpaid. 15 There has also been an indication that lawyers must spend substantial time to Honn, Bun: Perspective of Legal professional on the current domestic legal and judicial reform progress in Jeudy, Oeung et al: Workshop Report on the Implementation of the ECCC Legacies for Domestic Legal and Judicial Reform, (CHRAC: 2012), p.15, available on: orkshop_english_final.pdf Sperfeldt, Christoph: Legal Aid Services in Cambodia: Report of Survey among Legal Aid Providers, (CHRAC: 2010), p. 16, available at: 20Nov%2017%202010_%20FINAL.pdf Ibid, p

33 communicate with the court clerks to convince them to waive otherwise required payments associated with the filing of a complaint, for taking a matter to trial or for speeding up the case The Anti-Corruption Unit (ACU) was established in 2006 to undertake certain measures to fight against corruption at all levels and sectors through three main pillars: education, prevention, and law enforcement. 17 In 2011, after the Unit was redefined following the enactment of the Anti- Corruption Law, it took serious action in a few cases of judicial corruption, for instance, legal action was taken by the unit against former Pursat Provincial Court Prosecutor Top Chan Sereyvuth and he was ultimately sentenced to 19 years imprisonment for corruption, extortion and false imprisonment. 18 This provides some indication that judicial officials such as judges and prosecutors are involved in corruption practices and that the integrity of the cases and judiciary is become less respected by the public as well as the international community. More direct evidence of this fact can be found in Transparency International s Global Corruption Barometer report which asks citizens about their experiences and views of corruption. In the 2010/11 GCB, Cambodians described their judiciary as the most corrupt institution in the country, rating it a 4.0 (on a scale of 1 to 5, where 5 reflects the greatest level of corruption) Recommendations: - The Government should budget for the judiciary at a level that provides a reasonable salary for judges, prosecutors and clerks, while at the same time adopting taking consistent affirmative steps to eliminate informal payments of any type in the courts, and the adoption and enforcement of ethical standards that allows no corruption in the courts, whether associated with financial, political or other incentives. The budget should otherwise permit the courts to perform their role properly and effectively; - Under the Anti-Corruption Law, the Anti-Corruption Unit should act independently and professionally to actively investigate corruption cases pursuant to the Criminal Code and Anti-Corruption Law by sending them to trials. The Anti-Corruption Unit should be required to report quarterly on the number and types of cases that it received, disposed of and has pending, noting the types of cases categorically and accounting for all allegations reported to it. vi. Openness and Transparency on Legislation Drafting Process 25. There is no standardized practice by which the Government or Members of Parliament consult or discuss with the people in general, and civil society in particular, on any draft law and policy, despite the fact that the government seems to regard civil society as a partner in societal development. This results in a lack of transparency and open engagement and dialogue. There is no Law on Legislative Drafting Process that guides how legislation is drafted and adopted, despite the fact the relevant ministry has initiated a so-called Legislation Drafting Process framework Ibid, p. 13 See more on: ae2c30f034=2 See more on:

34 26. Recommendations - The Government should initiate a Legislation Drafting Process Law that outlines how legislation is drafted and adopted as a law of the country. - The Government should widen its consultation process on the development of policy, legislation and regulations to ensure that all legislative instruments are assessed as to their positive and negative impacts on human rights. - Because of its impact on future comment and consultation opportunities, the Legislation Drafting Process Law described above should be the subject of particularly extensive consultation opportunities, for the public, civil society and political parties. vii. Best Practices at the ECCC: Legacy for Domestic Court Reform 27. Since the Extraordinary Chambers in the Courts of Cambodia is a hybrid tribunal established to prosecute the senior leaders and the most responsible persons of serious crimes committed during the Khmer Rouge regime between 17 April 1975 to 6 January 1979, created by the Cambodian government and the United Nations, it has proven some best practice or legacy elements for domestic court reform. The ECCC uses domestic laws and is necessarily complemented by international jurisprudence to deal with serious crimes, and therefore the procedures at the ECCC can be used for domestic court reform, taking into consideration the many challenges the domestic courts have been facing The ECCC is considered a model court, 21 from which good practices should be taken into account by the Council for Legal and Judicial Reform, with the ECCC, to develop long term reform for the domestic court. Despite other issues, there has been some agreement on the positive legacies of the ECCC that would include: jurisprudential legacy, judicial legacy with regard to civil party participation, fair trial and trial monitoring, outreach, achieving and documentation of the ECCC documents, witness support and forensic psychological assessment and access to justice for women The standard courtroom configuration of the ECCC should be important for domestic courts and should be adopted by courts throughout the country. The design reflects the equality of the parties (prosecutor, defense and civil party), with a logical placement of the trial judge bench necessary to express the principle of equality of arms. The judges, prosecutors and lawyers of the defense and civil parties at the ECCC can be a role model for the national court and their experiences should then be applied best in the national court practice. In the past few years, the Ministry of Justice has committed to implement a pilot court model project 23 in Phnom Penh, Kandal, Banteay Meanchey and Kampong Cham with the support from the CLJR and donors. However, this model court project ended recently due to the lack of funding from donors and financial contribution from the government. We believe that model court is very fundamentally important for the judicial reform process in this country Surya P. Subedi: Report of the Special Rapporteur on the Situation of Human Rights in Cambodia (16 September 2010), A/HRC/15/16, para. 62, available at: RA-Reports/A_HRC_CMB E.pdf Welcome Remark by H.E. Tony Kranh, Acting Director of ECCC Administration in a High-Level Conference on Hybrid Perspectives on the Legacies of the ECCC jointly organized by ECCC and CHRAC, September 2012, p. 15. See more report available at: 0ECCC_English_FINAL.pdf See more in the whole Conference Report Hybrid Perspectives on the Legacies of the ECCC, available at: 0ECCC_English_FINAL.pdf Model Court Project was funded and implemented based on the Action Plan of the CLJR 30

35 30. Recommendations: - The Council for Legal and Judicial Reform (CLJR) and the ECCC should work together to develop plan of action on the ECCC s legacy and how to implement these legacy which are important for the domestic justice system reform; The Ministry of Justice shall discuss with the ECCC Administration Office to use the ECCC court room set up for designing the national court s room set up with adequate funding and it shall also ensure that the principle of equality of arms is effectively implemented at the domestic court; The Ministry of Justice should make more effort to cooperate with the development partners (donors) and other relevant stakeholders in order to continue working on Model Court project that will aim at improving other courts throughout the country. A volume adding annotations to Cambodia s Criminal Procedure Code, reflecting the decisions and practice of the ECCC as well as French and other source information, which has already been prepared by the ECCC and other contributors, be speedily adopted as an official reference book by Cambodia s Judiciary. The Joint NGOs Submission is endorsed by: 1. The Cambodian Human Rights and Development Association (ADHOC) 2. Building of Community Voices (BCV) 3. Coordination of Action Research on AIDS and Mobility (CARAM-Cambodia) 4. Cambodian Defenders Project (CDP) 5. Cambodian Women Crisis Center (CWCC) 6. Cambodian health and Human Rights Alliance (CHHRA) 7. Cambodian Center for the Protection of Children s Rights (CCPCR) 8. Cham Khmer Islam Minority Human Rights and Development Association (CKIMHRDA) 9. Center for Social Development (CSD) 10. Mission of Generous Cambodia Alliance (GENEROUS) 11. Indradevi Association (IDA) 12. Khmer Institute of Democracy (KID) 13. Khmer Youth Association (KYA) 14. Khmer Kampuchea Krom Human Rights and Development Association (KKKHRDA) 15. Khmer Student Association (KSA) 16. Khmer Institute for National Development (KIND) 17. Legal Aids of Cambodia (LAC) 18. Human Rights Vigilance of Cambodia (VIGILANCE) 19. Protection of Juvenile Justice (PJJ) 20. Human Rights Organization for Transparency and Peace (HROTP) 21. People Center for Development and Peace (PDP-Center) 22. The Cambodian Human Right Action Committee (CHRAC) 31

36 3. FAIR TRIAL RIGHTS About Legal Aid of Cambodia (LAC): Contact Person: Mr. Run Saray, Executive Director No 51 St 608 SangkatBoengKak II Khan TuolKork, Phnom Penh, Cambodia Tel: / Fax: About International Bridge to Justice (IBJ): Contact Person: Mr. OukVadeth, Executive Director ibj_vandeth@online.com.kh About Cambodian Human Rights Action Committee (CHRAC): Website: Contact Person: Mr. SuonBunsak, Executive Secretary suonbunsak@yahoo.com/chracsecretariat@yahoo.com Address: # 9Eo, Street 330, BoeungKengkang III, Chamkarmorn, Phnom Penh, Cambodia 32

37 Joint NGO Submission on Fair Trial Rights and Due Process in the Cambodian Legal System for the Universal Periodic Review of Cambodia s Human Rights Obligations June 2013 This joint submission has been prepared by Legal Aid of Cambodia (LAC) in consultation with key Cambodian NGOs. This Joint Submission is made by LAC, the International Bridge to Justice (IBJ) and the Cambodian Human Rights Action Committee (CHRAC). While not exhaustive, it outlines some of the key due process and fair trial rights available in the Cambodian justice system. A. Constitutional and Legislative Framework 1. Fair trial rights and due process have a number of sources in the Cambodian legal system. The Constitution of the Kingdom of Cambodia guarantees a number of rights and freedoms that form the foundation of fair trial rights and due process in the country. Chief among the rights and freedoms provided for by the Constitution are: equality before the law 1 ; the right to life, personal freedom and security 2 ; the presumption of innocence 3 ; and the independence of the judiciary Criminal procedure in Cambodia is codified in the Code of Criminal Procedure (CCP), promulgated in The CCP outlines the procedures for investigating and prosecuting crime in Cambodia in addition to the rights of victims and those charged with offences. In 2009, the Penal Code was passed in the National Assembly. The general provisions of Book I came into effect on December 10, 2009, while the remaining provisions were implemented in Phnom Penh on December 10, 2010 and on December 20, 2010 in the rest of the country. The new Penal Code sets out classes of offences, principles of criminal responsibility and sentencing, the territorial jurisdiction of the courts and numerous new offences. Both of these pieces of domestic legislation set out a number of procedural and substantive rights aimed at ensuring fair trials. 3. Additionally, in accordance with Article 31 of the Constitution, Cambodia has committed itself to recognizing and respecting human rights provided for by the international treaties and covenants to which it is a party. This commitment was confirmed by the Constitutional Council in July 2007, who held that Cambodia s treaty obligations form part of the law which should be considered by the judiciary in the trial process. 5 As such, the rights guaranteed in such instruments as the International Convention on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UNHR) form part of the domestic law of Cambodia and mandate respect for fair trial rights and due process in the Cambodian legal system Article 31 of the Constitution of the Kingdom of Cambodia [the Constitution]. Ibid, article 32. Ibid, article 38. Ibid, article 128. Constitutional Council of the Kingdom of Cambodia, Decision No. 092/003/2007, dated July 10,

38 B. The Policy Context 4. Legal and judicial reform has been a key component of the Royal Government of Cambodia s (RGC) strategy for encouraging growth, equity and efficiency in Cambodia for over a decade as of In 2003, the government approved a Legal and Judicial Reform Strategy, which remains the framework for establishing a credible and stable legal and judicial sector. 6 The LJR Strategy relies on four principles found in the Constitution to guide reform: the rights of individuals, liberal democracy, separation of powers and the rule of law. Legal and judicial reform was further recognized as a priority for the RGC as part of the National Strategic Development Plan (NSDP)released in The second phase of NSDP implementation was set by the RGC for 2009 through During this period, the government committed itself to implementing a number of measures intended to ensure that the legal and judicial system functions efficiently and respects Cambodia s fundamental human rights obligations. In particular, the government was to prioritize: adopting major fundamental laws (such as the Penal Code); providing training and disseminating information on laws and rights to citizens; strengthening the capacity of judges, prosecutors, court clerks and law enforcement officials to implement the law; providing legal aid; promoting the use of alternative dispute resolution mechanisms; and expanding judicial services. 7 While progress continues to be made on some of these priorities, legal and judicial reform remains an ongoing process within Cambodia. As a necessary step towards ensuring that fair trial rights and due process are fully respected in the Cambodian legal system, the RGC should ensure that it honours and fulfills the commitments made in the NSDP with respect to legal and judicial reform. C. Due Process and Fair Trial Rights On the Ground i) The principle of legality 5. The principle of legality holds that no one can be found guilty of a criminal offense for an act or omission that did not constitute a criminal offence at the time that the alleged act or omission was committed. It also mandates that a penalty heavier than the one applicable at the time of the alleged offence cannot be imposed. This principle is contained in article 11(2) of the UDHR and article 15 of the ICCPR. 6. From the experience of NGO participants in Cambodia s legal system, it appears that this right has largely been respected in the Cambodian courts, even with the enactment of the new Penal Code in 2009, which could have provided an opportunity for confusion between new and old offences. While the principle may not be fully understood, the courts have tried to follow the principle of legality in both charging and sentencing. However, it should be noted that NGO participants were aware of at least one case where the accused was charged with committing a crime which did not constitute an offence at the time the act was committed, 6 7 Council for Legal and Judicial Reform, Legal and Judicial Reform Strategy, adopted by the RGC at the Plenary Session on June 20, 2003, p 2. Royal Government of Cambodia, National Strategic Development Plan Update : For Growth, Equity and Efficiency to Meet Cambodia Millennium Development Goals, November 2009, < 3_cambodia>,pp

39 but which was subsequently criminalized in the Penal Code. As such, it is recommended that judges, prosecutors and the police be reminded of the principle of legality, through supplementary or initial training, so as to prevent the misapplication of the Penal Code to acts which were not criminal at the time they were committed. ii) The right to a public hearing 7. As guaranteed by article 316 of the CCP and article 14(1) of the ICCPR, everyone has the right to a public hearing, comprised of several elements: trials should be open to the public and conducted orally; information on the venue and date of the hearing should be made available to the public; and there should be adequate facilities for public attendance. 8 In cases where a public hearing would cause significant danger to public order or morality, the courts have been granted the discretion to conduct hearings completely or partially in-camera. 9 According to NGO participants in and observers of the Cambodian legal system, this exception is most often used in rape cases, where the victim requests a private hearing, or in cases involving child victims, witnesses or perpetrators. Otherwise, it is generally the case that hearings remain open and accessible to the public. 8. However, while courtrooms remain open to the public, it has been noted by trial observers that notification of hearings, through a public notice board or other means, is inconsistently done in some courts and completely absent in others. 10 As it is a fundamental principle of fair trial rights that justice must be seen to be done, it is recommended that all courts strive to compile andadvertise the court s schedule to the public, through the use of noticeboards erected outside of the courtroom. 9. Further, courts should look to the Extraordinary Chambers of the Courts of Cambodia (ECCC) as a positive example of public hearing practices which should be emulated, especially where hearings deal with politically sensitive and divisive cases, as concerns have been raised by NGO observers about obstruction of the public from the courtroom in such cases. iii) The right to liberty and to be tried without undue delay 10. It is a fundamental principle of human rights and the criminal law that everyone has the right to liberty and that any prosecution, arrest or detention of an individual must be done in accordance with the law. This right is guaranteed in Cambodian law in both the Constitution and CCP. 11 Further, the ICCPR provides that any person charged with a criminal offence is entitled to be tried without undue delay Despite the fact that both the CCP and ICCPR stipulate that accused persons are, in general, to remain at liberty, many NGO participants in the Cambodian legal system note that pre-trial detention and/or detention in police custody occurs in many, if not most, criminal cases. 8 9 United Nations Human Rights Committee, Communication No. 213/1986, Van Meurs v The Netherlands, para 6.2. Article 316 of the CCP. 10 See, for example, Cambodian Centre for Human Rights, Fifth Bi-annual Report: Fair Trial Rights in Cambodia, November 2012, pp Article 38 of the Constitution; Article 203 and 205 of the CPC. 12 Article 14(3)(c) of the ICCPR. 35

40 Judicial supervision remains an underutilized alternative to pre-trial detention, as NGO observers have indicated that it is only occasionally used for petty offences and misdemeanours. Judges should be encouraged to consider judicial supervision in cases where it may be an appropriate substitute for pre-trial detention. 12. Additionally, through supplementary or initial training, the judiciary must be reminded that pre-trial detention can only be ordered where one or more of the conditions outlined in article 205 of the CCPis fulfilled. When asked for reasons for ordering pre-trial detention, NGO observers reported that judges in some cases noted factors such as the case being complicated or that the accused was charged with a felony. Such considerations do not fall within the conditions outlined in article 205 and, as such, are insufficient reasons for ordering provisional detention. 13. There is a general consensus amongst NGO observers and participants in the Cambodian legal system that both the police and judiciary have in recent years improved in ensuring that the duration of police custody or detention does not extend beyond the statutory limits outlined in the CCP 13. Notwithstanding this improvement, there remain reports of persons held in police custody or pre-trial detention for periods longer than those permitted by the law. In particular, problems were noted in the provinces where investigating judges are on a rotation, which can result in delays in proceeding to a hearing when a judge leaves a province while in the midst of an investigation. Further, once a case has proceeded to trial, there is no limit as to the number of times a case may be returned to an investigative judge by the court, contributing to detention periods extending beyond the statutory limits. According to article 249 of the CCP, if a charged person is not brought to trial within the statutory period, they must be automatically released. 14. It is recommended that judges and the police are reminded, through additional or initial training, of the statutory limits for custody and detention in order to ensure that detainee s rights to liberty are respected. Additionally, judges are encouraged to respect and apply article 249 in cases where detention extends beyond the periods allowed under the law. Finally, both the police and judiciary are encouraged to keep and maintain detention period records and databases, so that they can more easily comply with statutory detention limits. The National Assembly is also encouraged to consider amendments to the CCP outlining limits on the number of times that a case may be returned to an investigating judge, in order to limit opportunities for delays which can push detention periods over the statutory limits. iv) Right to understand the nature of the charge and reasons for detention 15. Under Cambodian and international law, persons charged with a crime have the right to understand the nature of the charge against them and, if they are detained, the reasons for the detention. 14 This right additionally imposes obligations on the state to provide interpreters or other forms of accommodation if such measures are necessary in order to communicate with the accused Outlined in articles of the CCP. These rights can be found in articles 9(3), 14(3)(a) and 14(3)(f) of the ICCPR, and articles 97, 322, 235, 330, and 331 of the CCP. 36

41 16. Judges generally do an adequate job of stating the charge and relevant law to accused persons when they appear in court for a hearing.as will be discussed in further detail regarding the right to legal representation, because legal representation is available in Cambodia only after 24 hours of being in police custody, it is unclear whether the police follow the same practice. There are reports from detainees indicating that they do not. 17. The provision of interpreters for those who speak a different language or are deaf varies according to location and court resources. While in urban centres, such as Phnom Penh, interpreters are generally readily available for accused who speak Vietnamese, Mandarin/Cantonese, English or require sign language, there are reports of trials in the provinces being delayed where an interpreter was needed. Additionally, a lack of court resources means that accused are sometimes required to find and finance their own interpreter if one is needed, despite the guarantee of free assistance provided in article 14(3)(f) of the ICCPR. Accommodation services for the mentally ill or disabled are also lacking. While efforts are usually made to find a family member who can interpret for a mentally ill or disabled accused, if no family member is found, no further efforts are made to ensure that the accused understands the charges against them or the reasons for their detention. 18. Understanding the nature of the charge against an accused and the reasons for detention are essential for an accused to mount an adequate defence. As such, the Ministry of Justice is strongly encouraged to ensure that it has allocated adequate resources to the courts toguarantee that interpreters can be provided free-of-charge to accused as necessary. It should also evaluate existing accommodation practices for the mentally ill or disabled, and encourage retaining medical professionals and support workers as interpreters where necessary. v) Providing an adequate explanation of rights 19. The obligation to provide an adequate explanation of rights flows from an accused s right to understand the nature of the charge against them, as a detainee must first be aware of their rights in order to properly exercise them. There is a general lack of consistency in informing accused persons of their rights, by both the police and the judiciary, and even where an accused is informed, it is unclear whether the explanation is adequate. There have been reports by detainees of a complete failure by the police to inform them of their rights when they were taken into custody. While judges generally do inform accused persons of their basic rights (such as the right to legal representation), there have been reported instances where they have failed to inform them of the right to silence or have only provided a cursory explanation of basic rights. It is recommended that the judiciary and law enforcement officials receive additional training regarding informing and explaining basic rights to accused persons. If required, law enforcement officers should be provided with cards outlining an accused s rights that can be given or read to accused persons to ensure that they are informed of their rights upon arrest Modelled after a program first piloted by the Office of the High Commissioner for Human Rights in Cambodia. See Human Rights Council, The Role and Achievements of the Office of the United Nations High Commissioner for Human Rights in assisting the Government and people of Cambodia in the promotion and protection of human rights: Report of the Secretary-General, September 20, 2013 (A/HRC/21/35), p

42 vi) The right not to be compelled to confess guilt 20. This right encompasses and flows from the prohibition against torture and inhumane treatment outlined in the Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment, to which Cambodia is a signatory. This prohibition means that the authorities cannot use physical or psychological pressure to extract an admission of guilt from a suspect, a right which is further protected by both the Constitution and the ICCPR Despite these protections, reports of violence or threats of violence while in police custody remain a feature of the Cambodian justice system, although improvements have been noted. NGO observers of the Cambodian justice system have witnessed a perception amongst the police force that confessions are necessary in order to secure convictions, leading to a culture which promotes obtaining confessions of guilt from suspects using whatever means are necessary. Improved training for law enforcement officers on evidence gathering and criminal investigation is needed to remove any existing pressures on the police to obtain confessions. Such training must emphasize that the strength of the case isbased on the strength of all the evidence, with a confession only being one form of evidence. 22. Further, when prosecutors or judges are made aware that a confession has been obtained using violence or threats of violence, they should immediately exclude the confession from the trial, as mandated by article 38 of the Constitution, which prohibits the use of such confessions as evidence of guilt. vii) Exclusionary rules 23. NGO observers and participants in Cambodia s justice system have noted that article 38 of the Constitution and other exclusionary rules in the CCP 17 are rarely used by the judiciary, even though they are powerful tools for safeguarding fair trial rights and due process. It is recommended that further training be given to the judiciary regarding laws which mandate the exclusion of evidence or declarations that proceedings are null and void following severe violations of fair trial rights and due process. viii) The right to legal representation 24. The right to legal representation is constitutionally guaranteed in Cambodia. 18 A detainee may request to speak to legal counsel after 24 hours of being in police custody 19 and in cases where the detainee is a minor or the accused has been charged with a felony, the assistance of a lawyer is mandatory By the time a detainee arrives in court for a hearing, they have generally obtained legal representation or the court at that time will assign a lawyer to them. However, an accused s awareness of their right to representation seems to vary depending on geographical and educational factors. While most accused in urban centres, such as Phnom Penh, are aware that they have a right to the assistance of a lawyer, those who live in rural areas or who have Article 38 of the Constitution; Article 14(3)(b) of the ICCPR. Such as article 252 of the CCP. Article 38 of the Constitution. Article 98 of the CCP. Ibid, article

43 otherwise not had the opportunity to pursue education do not know of this right. Further, even where an accused is aware of their right to legal representation, they may be unaware of the availability of legal aid and opt to represent themselves unless the court appoints a lawyer on its own initiative, as they believe legal services will be too expensive.the police and judiciary are reminded that it is their responsibility to inform detainees upon being taken into custody of their right to legal representation. Further, it is recommended that detainees be additionally informed of the availability of legal aid services should they be unable to afford a private lawyer. 26. Many NGO observers and participants in the Cambodian justice system noted that the 24 hour delay in accessing legal counsel found in the CPC is a key impediment to accused persons fully exercising and being made aware of their rights. 21 As most lawyers are not retained until a case has been transferred to an investigative judge, they are unable to ensure that their clients fair trial rights are respected and due process followed throughout the criminal justice system, especially at the police level. Policymakers are encouraged to amend the CCP so that legal assistance can be provided to accused persons immediately upon being taken into police custody. ix) The right to adequate time and facilities to prepare a defence 27. Under international and Cambodian law, an accused is entitled to have adequate time and facilities to prepare a defence, preferably with the assistance of a lawyer. 22 Troublingly, however, there are continued reports of lawyers being assigned a client a few days before or even the day of a hearing, providing them with no opportunity to appropriately prepare their new client s case. Some NGO s that provide legal aid have begun refusing to take on clients referred to them by the court if they have not been provided with adequate time to prepare. The Bar Association of the Kingdom of Cambodia has also issued directives to attempt to prevent judges from trying to assign lawyers to clients on the day of a hearing. It was noted by NGO observers that these practices may only affect a minority of cases. However, it is recommended that either practice directives and legislation mandating the minimum amount of time that a lawyer can have to prepare their client s case be respected by the courts and, if necessary, hearings delayed in order to afford an accused the requisite amount of time to mount a defence. x) The right to an equal opportunity to present evidence 28. In order to properly adjudicate on a case, all parties must have the opportunity to present evidence to the court to support their arguments. This includes the right to call and examine witnesses before the court, as well as provide documentary evidence. 23 While it appears that procedurally, this right is respected in Cambodian courtrooms, some providers of legal aid services for accused persons note that ongoing distrust of the justice system or practical difficulties in transporting and providing for witnesses to attend at court mean that the This provision was also noted with concern by international observers, such as the Committee against Torture, Consideration of reports submitted by States parties under article 19 of the Convention: Concluding observations of the Committee against Torture - Cambodia 1-19 November 2010, < >, p 5. See article 14(3)(b) of the ICCPR and articles 98 and 319 of the CCP. This right has informed article 14(3)(e) of the ICCPR, and articles 153, 298, 324, 326 and 334 of the CCP. 39

44 defence is not often able to present all of the evidence that may be available. As a result, while the defence may be afforded the opportunity to present evidence in court, in reality, the difficulties associated with gathering evidence in order to mount a defence - difficulties not necessarily experienced by the prosecution - result in an uneven playing field. 29. It is recommended that judges maintain open dialogue with defence lawyers concerning whether they have been afforded enough time to gather sufficient evidence in order to maximize their opportunity to present their case. Additionally, more resources are required for legal aid providers to ensure that they are able to support bringing witnesses to court if necessary to mount a complete defence. xi) The presumption of innocence 30. It is a fundamental principle of criminal justice that an accused is innocent until proven otherwise. Despite the fact that this right enjoys protection both in the Constitution and ICCPR in Cambodia, there are inconsistencies as to the degree to which it is actually respected in practice. Many detainees continue to appear before the court in prison uniforms rather than plain clothes, although improvements have been noted in some jurisdictions as a result of NGO advocacy. There have been reports of judges making remarks about the guilt of the accused prior to rendering a decision, raising the possibility that they have pre-judged a case prior to receiving all of the evidence. Additionally, there have been instances where the silence of the accused has appeared to be taken as an admission of guilt rather than an exercise of the right against self-incrimination. At the police level, some NGO observers have noted that law enforcement officers have collected evidence based on the assumption that a suspect is guilty, rather than fully investigating a crime. As a result, it is recommended that law enforcement officials and the judiciary receive initial and supplementary training on the presumption of innocence, and the obligations it imposes upon them to act in an impartial, truth-seeking manner. xii) The right to be tried before an impartial and independent tribunal 31. Supporting and maintaining the independence of the judiciary has been a key goal of the legal and judicial reform measures by the RGC, as found in the NSDP. The focus and recognition of this goal is laudable and progress remains ongoing. Many NGO observers and participants in the Cambodian justice system felt that the judiciary generally operated independently in the cases in which they were involved. However, they cautioned that the cases they deal with generally concern the economically underprivileged, where there are few sources of external pressures that would affect judgments. There are still doubts as to the ability of the judiciary to operate independently in politically controversial cases Even in cases where a judge may be acting in an independent and impartial manner, the appearance of judicial independence may be compromised by the conduct of the judge, weakening public faith in the judiciary. There are reports of judges behaving in an intimidating manner towards parties, making disparaging or discriminatory comments about 24 For example, see the ongoing controversy regarding the trial and conviction of Boeung Kak community activist, Yorm Bopha. LICADHO: Cambodian League for the Promotion and Defense of Human Rights, Briefing Update: The Yorm Bopha Case, April 2013, < 40

45 a party s economic status, and it remains commonplace courtroom conduct for judges to answer their phones or leave the room during a hearing. It is recommended that the judiciary be reminded through training that maintaining the appearance of judicial independence is a fundamental component of judicial independence itself. To that end, judges are reminded that they must hold themselves to the highest standard of behaviour and should not: behave in an overly aggressive manner towards any of the parties; make discriminatory remarks about a party s race, gender, mental ability or economic status; answer their mobile phones while conducting hearings; and leave the courtroom while in the midst of hearings. 33. Further action is also required from the RGC to guarantee judicial independence. As was promised in the second phase of NSDP implementation, the Law on the Status of Judges and Prosecutor and the Law on the Organization and Functioning of the Courts should be passed as soon as possible in order to solidify the separation of powers guaranteed in the Constitution.These two major laws have been stalled in the National Assembly at the draft stage for nearly two decades, despite the fact that they are enshrined in the Constitution. It is also respectfully requested that the RGC abide by the Constitution and respect the principle of judicial independence by refraining from interference in the courts, even in cases that involve politically controversial or divisive issues. ATTACHMENT A List of Supporting Organizations Legal Aid of Cambodia (LAC) International Bridge to Justice (IBJ) Cambodian Human Rights Action Committee (CHRAC) 41

46 4. RULE OF LAW AND TORTURE ISSUE Joint Submission of UPR on Cambodia by The Asian Legal Resource Centre (ALRC), 1 based in Hong Kong, DIGNITY - Danish Institute Against Torture, based in Denmark, The Transcultural Psychosocial Organization Cambodia (TPO), and The Cambodian Human Rights Action Committee (CHRAC) 2 About ALRC (Website: Contact Person: Mr. Basil Fernando, Director for Policy and Programme Development, basil.fernando@ahrc.asia Address: Unit 701A, Westley Square, 48 Hoi Yuen Road, Kwun Tong, KLN, Hong Kong, China About DIGNITY (Website: Contact Person: Mr. Erik Wendt, Programme Manager, Asia, ew@dignityinstitute.dk Address: Borgergade 13, PO Box 2107, DK København K About CHRAC (Website: Contact Person: Mr. Suon Bunsak, Executive Secretary, suonbunsak@yahoo.com/ chracsecretariat@yahoo.com Address: # 9Eo, Street 330, Boeung Kengkang III, Chamkarmorn, Phnom Penh, Cambodia About TPO (Website: Contact Person: Dr. Chhim Sotheara, Executive Director, sotheara@tpocambodia.org Address: #2 & 4, Oknha Vaing Street, Phnom Penh Thmey, Sen Sok, Phnom Penh, Cambodia 1 2 General Consultative Status with ECOSOC A coalition of 22 NGOs working in the fields of human rights, democracy and legal aid in Cambodia (The Cambodian Human Rights and Development Association (ADHOC), Building of Community Voices (BCV), Coordination of Action Research on AIDS and Mobility (CARAM-Cambodia), Cambodian Defenders Project (CDP), Cambodian Women Crisis Center (CWCC), Cambodian health and Human Rights Alliance (CHHRA), Cambodian Center for the Protection of Children s Rights (CCPCR), Cham Khmer Islam Minority Human Rights and Development Association (CKIMHRDA), Center for Social Development (CSD), Mission of Generous Cambodia Alliance (GENEROUS), Indradevi Association (IDA), Khmer Institute of Democracy (KID), Khmer Youth Association (KYA), Khmer Kampuchea Krom Human Rights and Development Association (KKKHRDA), Khmer Student Association (KSA), Khmer Institute for National Development (KIND), Legal Aids of Cambodia (LAC), Human Rights Vigilance of Cambodia (VIGILANCE), Protection of Juvenile Justice (PJJ), Human Rights Organization for Transparency and Peace (HROTP), People Center for Development and Peace (PDP-Center) and The Cambodian Human Right Action Committee (CHRAC) 42

47 While recognizing some progress pertaining to the implementation of the UPR recommendations in the first cycle, the organizations taking part in this joint submission wish to bring attention to the following concerns relating to the protection and promotion of human rights in Cambodia. Key concerns and issues: 1. The Constitution: a: The implementation of the Constitution of the Kingdom of Cambodia, adopted in 1993, has remained problematic. The key obstruction is the failure to develop a basic institutional framework in terms of the Constitution. At the time the Constitution was adopted, Cambodia did not possess the basic institutional framework for the implementation of a constitution of a liberal democracy. For many preceding decades, Cambodia was ravaged by a long series of conflicts and all the basic institutions that had earlier prevailed were wiped out. The loss of millions of lives due to bombings, atrocities during the four-year rule of the Khmer Rouge and fighting over the following years due to the civil war between several Cambodian factions, left an imprint on the country. It was hoped that, following the UN sponsored election in 1993 and the adoption of the new Constitution, Cambodia would make a new beginning as a liberal democracy. However, the structure that was built during the civil war period has continued to have an influence and obstructed the development of the basic institutions necessary for the functioning of a liberal democracy as envisaged by the new Constitution. b: The implementation of liberal democracy requires that conditions exist for the conduct of free and fair elections. These include the requirement that all political parties have the freedom to function within a democratic space. In Cambodia, the opposition parties are constantly exposed to extreme forms of repression. Many methods are employed for such repression, including repercussions for anyone who openly joins such opposition parties, and leaders of these parties are often exposed to fabricated charges. In such political cases, the courts do not have much choice but to strictly enforce the law in terms of the requirements of the ruling party. Thus, the mere appearance of a free and fair election by there being no direct violence exercised on the polling days does not mean that the conditions for such elections exist. c: The development of a civilian policing system with a command structure, and the operation of such a policing system only on the basis of law, is a precondition for equality before the law, which, in turn, is a precondition for the enjoyment of any rights by the citizens. In the period following the UN sponsored elections in 1993, there has not been any qualitative improvement of the policing system. The system is still under the control of the ruling party. As a result, the public perception of the policing system is low and what exists as the policing system is a mixture of the military and the police. The continuance of military styles and habits acts as an obstacle to the development of a policing system that works only on the basis of the rule of law. Besides this, there is also a strong public perception that corruption pervades the entire policing system. Recommendations: (a) To take practical steps to make the constitution a practicable instrument by developing the necessary procedural requirements that enable the citizens of the Kingdom of Cambodia to bring cases before the Supreme Court and the Appeal Court of Cambodia for violations of their rights guaranteed under the constitution. (b) In order to achieve the above purpose, make provisions for the Supreme Court to act on the basis of the separation of powers and enable it to review decisions and actions of 43

48 the executive, in order to ensure that such decisions and actions are done in conformity with the constitution. (c) Take all steps to remove the present impediments on the Supreme Court and the Appeal Court of Cambodia, which will uplift these courts from their present position of being subordinated to the executive and the legislature, and being unimportant institutions without any real power to challenge the transgressions of the executive. (d) Provide public space for all political parties, particularly the opposition parties, to function without hindrance and to exercise their democratic rights as political parties at all times; particularly take steps to remove the abuse of the legal process that allows the suppression of leaders and other active members of all political parties, including the opposition parties, and thereby make the right of citizens to have free and fair elections a reality. (e) Remove impediments to the development of a civilian policing system with a command structure that enables such a policing system to work only on the basis of law, ensuring the equality of all citizens through the operation of the rule of law; delink the policing system from all kinds of military and political controls; take effective steps to prevent the recruitment of the police, including the higher ranking officers, through a recruitment process that allows the payment of bribes to obtain positions. 2. The independence of the judiciary: a: The 1993 Constitution incorporated the principle of the separation of powers as the basis of the power structure of the Kingdom of Cambodia. This implied that the judiciary in Cambodia would be a separate branch of government and would not come under the control of the executive. However, the institutional framework needed for the exercise of the independence of the judiciary has not been established and therefore the independence of the judiciary remains only an ideal enshrined in the constitution, not a reality. b: The Supreme Court of the Kingdom of Cambodia has not been developed to the position of a Supreme Court in a liberal democracy. The powers of the court do not include the capacity to review the administrative actions of the government on the basis of possible conflicts with the rights of the citizens. There is no legal possibility for any Cambodian citizen to challenge the decisions of any government agency on the basis that such actions are in conflict with his or her rights. Neither the substantive law nor the procedural law allows for this possibility. c: The Constitutional Council mostly remains a non-functioning institution. The manner of its appointments and the control exercised over it by the executive virtually prevents it from being an effective institution that ensures the constitutionality of laws and the protection of the rights of citizens. The Constitutional Council virtually blocks the development of the judiciary as an independent institution in the Cambodia. d: The Supreme Council of the Magistracy, which could ensure the appointment of competent and impartial persons capable of functioning as judges, also remains an institution that is virtually controlled by the executive, incapable of acting independently and on the basis of the international norms and standards expected to be observed by such an institution. e: There are serious concerns about persons seeking judicial positions paying bribes in order to obtain them. There are no independent forums to receive such complaints from the public. 44

49 f: In all sensitive cases, including the cases relating to land grabbing, the judgments and the orders given by the courts clearly indicate that there is a clear bias in favour of the government. Recommendations: (a) The Supreme Court of the Kingdom of Cambodia should be elevated to the position of a supreme court within a liberal democracy and it should be the final adjudicator on matters relating to the legality of any legislation or executive action. (b) Remove the impediments to the functioning of the Constitutional Council, particularly by appointing members of the council only on the basis of merit, and take steps to remove the perception about the politicization of such appointments. (c) Make the Supreme Council of the Magistracy a functional institution with enough resources and power, and remove political control over it to enable it to make its decisions on the basis of valid criteria and only on the basis of merit. Remove all possibilities of obtaining judicial positions through political influence or payment of bribes. Take effective steps to remove the public perception of political influence in sensitive cases, particularly cases against opposition politicians and cases relating to land grabbing. 3. The practice of torture a: The practice of torture is quite frequent after persons are arrested by the police, as well as in the prisons. b: Torture provides an opportunity for extortion to the police officers, as well as to the prison officers. c: There is no complaint mechanism available to victims of torture. An independent complaint mechanism with the power and the resources to investigate complaints of torture is an essential component of providing relief to victims of torture. d: There are no medical facilities or services of forensic pathologists that could examine and make proper forensic reports relating to complaints of torture. Thus, much of the medical evidence of torture is lost and this acts against the possibilities of redress for torture victims. e: Although the Constitution of the Kingdom of Cambodia prohibits torture and the new penal code also makes torture an offense, no clear definition of torture is available in law. The result is that there is confusion among the judges and even in the legal profession about what constitutes torture. Clear legislation defining torture in terms of the CAT Convention is an essential step in order to create the possibility of redress for torture victims. f: There is no procedural law to file cases against torture. Therefore the legal rights for victims of torture to bring complaints before the courts do not exist. The procedural developments needed to bring cases of a criminal and constitutional nature must to be established if the possibility of redress is to become a reality in the Kingdom of Cambodia. g: There is also no legislation relating to compensation for torture. Substantive law as well as procedural law stating where the cases for compensation may be filed and the procedures for the disposal of such cases is required. 45

50 h: Above all, the power of the judiciary to entertain complaints of torture and take appropriate action against torture needs to be clearly established if the perception that the police and other authorities are above the courts is to be dispelled. The education of the judicial officers about their power and obligations on this matter is also a necessary aspect of making redress for torture available in Cambodia. Recommendations: (a) (b) (c) (d) (e) (f) (g) Make a policy declaration and communicate it to all police, military and prison authorities, stating that torture and ill treatment are illegal and that all measures should be taken to prevent the use of torture and ill treatment. Take particular steps to ensure that the use of torture and ill treatment is prevented for the purposes of extortion. Institute an independent complaints mechanism to receive complaints relating to torture and ill treatment, and enable its proper functioning by granting the necessary powers and the financial and other resources needed. Enable the education of doctors as forensic pathologists with the capacity to do proper medical examinations and make reports relating to torture and ill treatment. Make legislation adopting a definition of torture in conformity with the definition in the Convention against Torture. Make procedural law to enable filing cases before court on the basis of complaints of torture and ill treatment. Make legislation for compensation and rehabilitation of victims, and also for witness protection. Above all, ensure the power of the judiciary to entertain complaints and to take appropriate action to ensure redress for victims of torture. 4. Fair trial a: Despite the Constitution recognising the equality of all persons in the administration of justice, the Cambodian courts do not have the power to summon powerful persons within the government, or even summon other persons who enjoy political patronage. In the 21 years that have passed since the adoption of the 1993 Constitution, not a single person holding a high position in the government, or even the bureaucracy or police and military, has been called before a court as an accused or even as a witness. Although, abstractly speaking, the courts have power over everyone, in actual fact the courts in Cambodia do not enjoy such power. b: Although the Constitution recognises the right to be presumed innocent until proven guilty, in practical terms the principle that still operates is that a person charged before a court is guilty. This is especially so in cases of a sensitive nature, such as when opposition politicians or human rights activists or persons charged with such offenses as resistance to the grabbing of their lands are being prosecuted. The courts proceed on the basis that such accused are guilty. If the principle of the presumption of innocence is to be respected in reality, procedural requirements should be clearly legislated so that the courts can act on the basis of such procedures and resist political or other pressures to do otherwise. The principle of the presumption of innocence should also be developed in procedural law for dealing with bail applications. c: The right of counsel to cross examine witnesses, including police and military officers or other officers of the state, is often not guaranteed. This is especially necessary in relation to the relevant witnesses or officers who have recorded statements made to the police or other authorities. 46

51 d: In order to ensure that the accused has the right to a counsel to represent them, a system of free legal aid needs to be established, as many persons who are charged belong to the poorer classes and do not have access to legal counsel. e: When persons from the minorities are charged, their right to an interpreter should be guaranteed. f: The judgments and court orders must be written by the judges who have, in fact, presided over the trial and listened to all the evidence and no one else. The judgments should be written in a manner in which the relevant law and the evidence relied on for the judgments are clearly presented. Such written judgments are an essential aspect of creating the possibility of an appeal from the relevant court to a higher court. g: The practice of reducing the courts to a market place by way of many forms of bargaining needs to be discontinued if the practice of fair trial is to be the basis on which the charges are disposed of. h: There is a widespread public perception of the prevalence of corruption relating to adjudication. i: There are constant reports of land grabbing (driving away persons with legal title who have possessed these lands for long periods of time, particularly done for companies who claim these lands). The public perception is that such land grabbers enjoy political patronage and that the police and military officers take their side. Despite many assurances about the development of proper systems of legal remedy for those who are affected by land grabbing, no such system so far exists. Many people from all parts of the country have become victims and have no remedy from the law. Recommendations: (a) Enable the equality of all persons before the law by removing all impediments to summoning any person to court, including high ranking persons and those who enjoy political patronage; no one should be allowed to refuse to come before court and be a witness. (b) Remove all impediments to the implementation of the presumption of innocence of the accused, including for opposition politicians, human rights activists and victims of land grabbing. The presumption of innocence should also be respected in granting bail and the necessary procedural laws should be developed for that purpose. (c) The right of legal counsel to conduct cross-examination should be ensured on all occasions, regarding the testimony of all persons, including police and military officers and powerful government officials. (d) The right to be represented by a counsel should be available to all, including the poor, and, for this purpose, a proper legal aid system needs to be ensured. (e) The right to an interpreter should be guaranteed to all minorities. (f) Steps should be taken to ensure that all judgments and court orders are made in writing and that such judgments and orders should be made only by the judges who are directly involved in the hearing of the case. The judgment should be written in a manner in which all relevant law and evidence relied on in the judgment are clearly stated, in order to enable the possibility of an appeal from the relevant court to a higher court. (g) The practices that reduce the courts to a marketplace through many forms of illegal bargaining need to be discontinued to ensure that fair trial is ensured to everyone. (h) Steps should be taken to respond to the public perception of the prevalence of corruption relating to adjudication. 47

52 (i) As there is a serious public concern that those who are subjected to land grabbing are not provided proper legal protection in courts, special measures must be taken to ensure the credibility of courts attending to these matters. 5. The rule of law: The overall problem that affects the implementation of rights in Cambodia is that, in many areas of life, the law is not the criteria on which the rights of persons are decided. Political power and other forms of muscle power are still the deciding factor in many disputes, rather than the rule of law and the principles relating to the administration of justice. Recommendation: The rule of law as the operative principle in all matters in all public institutions needs to be enforced. The criticism that political considerations dominate the concerns about the rule of law needs to be thoroughly scrutinized and remedied. 48

53 5. PEACEFUL ASSEMBLY LAW ISSUE Universal Periodic Review Submission on the Right to Peaceful Demonstration in the Kingdom of Cambodia Facilitated by Cooperation Committee for Cambodia (CCC) The right to demonstrate peacefully is one of the many elements which create an enabling environment for civil society. Linked as it is to freedom of expression and assembly, it is also a cornerstone of democracy. At the same time, those who exercise the right and freedom to hold peaceful demonstrations must act in accordance with the law, that is to say they shall not infringe on the rights and freedoms of others, or jeopardize national security, public safety or public order. In Cambodia, the right to peaceful demonstration is secured both by international agreement and constitutional law. This report is submitted on behalf of civil society in order to ensure that the right is also recognized and protected in the Kingdom. It identifies three issues and puts forward three recommendations. I. Methodology This submission was developed by Cooperation Committee for Cambodia (CCC) after interviewing five people from the communities and human rights organization who have been involved in various demonstrations in Phnom Penh. The Advisor has acted as an instructor in many training sessions on the Law on Peaceful Demonstration conducted and funded by UNOHCHR in collaboration with EWMI-PRAJ and the comments from participants during training were also incorporated in the report. Most of the participants were human rights activists who have been involved in demonstrations in the past. The related legal instruments, particularly Law on Peaceful Demonstration, also has been reviewed and analyzed. This submission is written in brief form, so that only focused issues can be straightforwardly identified. Some points, which were originally written, were withdrawn given that they overlapped with other submissions. II. Introduction Fundamental to the enabling environment sought by civil society around the world is full recognition of the right to Freedom of Assembly and the freedom to organize and participate in peaceful demonstrations. These rights are protected by various international instruments including the Universal Declaration of Human Rights (UDHR), Article 20, and the International Covenant on Civil and Political Rights (ICCPR), Article 21. They are encompassed as well by United Nations Human Rights Council Resolution 5/1 which ensures the participation of all relevant stakeholders, including non-governmental organizations and national human rights institutions. These instruments have long been ratified by Royal Government of Cambodia and the rights are protected explicitly in Cambodia s foundational law. Article 37 of the Constitution of Cambodia states that the right to strike and to organize peaceful demonstrations shall be exercised within the framework of law. Article 41 states that Khmer citizens shall have the freedom to express their personal opinions, the freedom of press, of publication and of assembly. No one can take abusive advantage of these rights to impinge on the dignity of others, to affect the good mores and custom of society, public order and national security 49

54 III. Key Issues and Recommendation Issue 1: The Law on Peaceful Demonstration (LPD) was adopted by National Assembly and promulgated in late 2009 to assure freedom of expression of Khmer citizens through peaceful demonstration. In December 2010, the Government s Ministry of Interior adopted an Implementation Guide (IG) to be used as a basic tool to assist the relevant competent authorities and citizens in respecting and complying with the LPD and to elaborate on some of the guiding principles to assist both citizens and implementing authorizes to comply with the law. The IG also advises the relevant competent authorities to carry out their roles and duties in accordance with the LPD and the guidance as define in the IG. So far, many people from the community-based organization, civil society organizations, NGOs have been aware of the LPD and IG through regional trainings conducted collaboratively by UNOHCHR and EWMI-PRAJ. However, relevant authorities dealing with various demonstrations haven t been trained yet. Some of them, especially, provincial authorities seem not even to be aware that the LPD and/or IG exist. Recommendation 1: Government of Cambodia should actively work with and/or seek support from donors, development partners and/or international organizations, especially UNOHCHR to publish the LPD and IG as many as possible in order to raise awareness amongst relevant authorities and stakeholders. Whenever possible, Government of Cambodia through Ministry of Interior should conduct the trainings or any dissemination workshop on LPD and IG to all relevant authorities across the country to ensure that state s officials from municipal/provincial and district levels are aware of all the provisions of the LPD and its IG. To do this, it can ensure that freedom of assembly and freedom of expression be respected in Cambodia. Issue 2: One of the strongest concerns about human rights violation is that the police intervention is not proportional to the situation and they fail to show a reasonable degree of patience. Ex: On June 17, 2013, more than 100 police and security guards, including riot squad members, were deployed to the capital s Beoung Kok lake community to block a protest that, at times, involved only three shouting women. And on June 18, 2013, at least two protestors fainted and a third was injured after Boeung Kok villagers clashed with police in front of the Royal Palace when the villagers attempted to submit a petition to Queen Mother Norodom Monineath, pleading for a birthday intervention on behalf of imprisoned activist Yorm Bopha 1. Another significant disproportion of police intervention was on May 29, 2013 when a woman was knocked unconscious and many more fell to the ground when municipal authorities unleashed water cannon on Boueng Kok lake, Borei Keila and Thmor Kol protesters, who were blocking the capital s Monivong Boulevard 2. Recommendation 2: Such violations would occur less frequently if competent authorities were aware that they are designated to maintain security, safety and public order at venues of peaceful demonstration and should adhere to an attitude of absolute patience (article 19 of PDL). In case a peaceful demonstration turns violent, competent authorities shall take proper measures to prevent or stop the demonstration immediately (article 20). More importantly, police intervention must be proportional to the situation, and only be to the extent necessary to promptly restore order (3-6-5 of IG). 1 2 Phnom Penh Post. Khouth Sopheak Chakrya. June 18-19, Police block Beuong Kak Protestor. And Activists, cops clash at palace. Phnom Penh Post, Khouth Sopheak Chakrya. May 30, City turns up pressure. 50

55 Issue 3: On January 14, 2007 Government of Cambodia, through Interior Ministry, issued a letter to Governor of Kratie and Strung Treng province to advise all concerned Associations and NGOs to send a notification when holding the public forums to the provincial/municipal authorities with precise agendas, topics, venue and dates. On November 10, 2004 it also issued a similar letter to the governor of Pursat province stating that any association or non-governmental organization which has already been allowed to establish its office in cities or provinces and wishes to open vocational training, conventions or workshops or meeting must inform its local authority five days in advance. These letters or instructions should have been nullified by LPD 2009 and IG 2010 Article 5 of LPD which states that any group of individuals who wish to organize a peaceful demonstration at any public venue shall notify the competent municipal or provincial territorial authorities in charge of that place in writing. Article 3 provides the scope of implementation including part of a parade, funeral procession or other gathering to serve religion, art, culture, national customs and tradition or educational dissemination activities for social interest. The IG further provides the examples of educational dissemination not covered by the law including; trainings, workshops, public forum, and press conferences. This means that there is no requirement to notify such activities to authorities. However, some local authorities still use the letter or instruction to stop some educational dissemination activities on grounds they had not received advanced notification. Recommendation 3: Relevant authorities should be made aware that the LPD 2009 and IG 2010 nullified those letters or instructions. All educational dissemination no longer requires prior notification. IV. Conclusion The LPD has a key role in the creation and maintenance of an enabling environment for civil society in Cambodia. It ensures that demonstrations can proceed in an orderly, peaceful manner. As such it deserves the understanding and support of authorities at the provincial and municipal level except for cases in which there could be a real and actual threat to national security, safety and public order 3. CSOs and NGOs look forward to using the rights of peaceful demonstration and we also look forward to seeing law enforcement officials abide by the law. We also hope to see that penalty provisions will be used to punish those who violate any laws and instruments. 3 The Implementation Guide of LPD. Dec Forward. Para 6 51

56 6. ACCESS TO INFORMATION Joint NGO Submission to the Universal Periodic Review of Cambodia-June 2013 Facilitated by The Advocacy and Policy Institute (API) The joint submission is been prepared with consultation with Access to Information Working Group. It is endorsed by 30 NGOs listed in the attachment. 1. Problem Statement: Existing legal framework relating to access to information The protection of the right to information in the Constitution of Cambodia does not express. While a patchwork of legislation touches on access and disclosure obligations, there is currently no specific law addressing access to information. Although the Constitution of Cambodia provides no express protection for the right to information, some provisions support the principles of disclosure, public participation, and expression. Patchwork of legislation relating to access and disclosure A patchwork of legislation addresses access to information in various sectors to varying degrees. In 2010, the Advocacy and Policy Institute reviewed 310 Cambodian laws and 188 sub-decrees to identify articles related to access to information. 1 Researchers studied legislation relating to education, health and medicine, public administration, de-centralisation and de-concentration, economy, investment, and labour, and natural resource management and the environment. One relevant law is the Press Law, but it applies only to the media and is riddled with exemptions. The Archive Law, Anti-Corruption Law, and the Civil Code also have relevant provisions. The report concludes that the current legal framework is inadequate: The Cambodian laws and sub-decrees the research team studied considerably mention about access to information, but they are still fragmented, not concentrated and not responsive to better implementation. It is, therefore, difficult for the public to access information. The public cannot even request for information about laws that have already been promulgated or national policies adopted. 2 State of disclosure of information The general consensus among experts is that government disclosure practices are weak. Today, [g]aining access to even basic information such as draft laws, regulations, national budgets, and policy papers is exceptionally difficult. 3 According to an opposition Sam Rainsy Party lawmaker, all types of information from government payrolls to licenses for exploitation of natural resources are kept secret from the public, and even from parliamentarians. 4 A journalist has attested that many journalists are only able to get access to the government-held records only at the mercy of officials who are willing to release partial information to the media while keeping secret other important information. 5 Citizens concerned with particular issues affecting their communities Advocacy and Policy Institute. Review of Legislation Relating to Access to Information. Undated. Advocacy and Policy Institute. Review of Legislation Relating to Access to Information, Undated. pp Advocacy and Policy Institute. Review of Legislation Relating to Access to Information. Undated. Pg. 1. Paul Vrieze and Phorn Bopha. Group Backs Freedom of Information Draft, Cambodia Daily. September 27, Moeun Chhean Nariddh. All Parties Stand to Gain from Freedom of Information Law. Letter to the Editor, The Cambodia Daily. September 29,

57 For example, a commune council in Kompong Thom province notified community members they could not grow rice next year along the Tonle Sap River. The council said the government notified them without explanation 6. According to Transparency International, Perception Index of 2012, Cambodia was 157 among 176 counties which places Cambodia one most of corrupted country in the world. The Anti-corruption law's stipulation about punishment of those who give false information is an obstacle to the principle of whistleblowers protection. The NGO Access Initiative summarises, In practice, the government keeps strict control over what is open to public scrutiny. 7 Sectoral and issue-based consultations undertaken between 2010 and 2012 in the education, labour, health, decentralisation, and media sector, and with those involved in forestry and land concessions, fisheries, the extractive industries, and housing rights revealed the following barriers to access: 8 absence of clear procedures for requesting information; absence of information on where to request information/public body; absence of clear procedures for transferring information in public body; absence of staff available to provide requested information; discrimination (e.g. against minors, people with disabilities, illiterate Cambodians, journalists, people who are not part of the ruling party); requirement to pay a fee; requirement to state a reason for requesting information; requirement to present an official letter; requirement to leave ID card with the official; requirement to travel a long distance to request or receive information; delays in receiving information such that it may be out of date when it is received; refusal to provide information; provision of inaccurate or false information; absence of legal protection for journalists or whistleblowers. Furthermore, a UNDP report on access to information summarises some of the problems related to government disclosure capacity: [E]ven in those ministries and other public bodies that have some semblance of an A2I policy, specific rules, procedures, and regulations governing public information access are often confusing, vague or even non-existent. And, even in cases where the policy procedures are clear, staffs often lack the knowledge, training, and motivation to effectively implement the policies. 9 Challenges to passing access to information legislation The Royal Government of Cambodia (RGC) committed to pass an international-standard Access to Information Law by the end of This task was assigned to Ministry of National Assembly and Senate Relations and Inspection (MONASRI). However, approaching the second half of 2007, the RCG agreed upon charging a committee with initiating the Access to Information Policy Paper/framework drafting process. While some progress had been observed in the Policy Framework development, there was no advancement towards its approval. To date, the RGC has still not passed a comprehensive access to information law. The proposed legislation introduced by the opposition Sam Rainsy Party (SRP) has not been passed. Some government officials and members of Parliament have shown support for access to information. However, this support has been scattered, and political will to act remains low Introduction to Access to Information in Cambodia. August Pg.5. The Access Initiative Cambodia. Cambodia Assessment Report: Access to Information, Public Participation, and Access to Justice. December Pg. 25. Advocacy and Policy Institute. Reports on consultative meetings Raymond Leos. The Role of Access to Information in Promoting Democracy, Good Governance, and Development in Cambodia. Undated. Pg

58 Challenges in promoting openness and disclosure One challenge to the promotion of access to information is that Cambodia has not historically been an open society. A Cambodian legal scholar has described the roots of this culture of secrecy. A culture of openness makes serious abuses like torture or detention less likely to happen. Sub- National Officials are reluctant to openness and disclose information with reasons of leaking resource, limited capacity, and culture of secrecy, even the Sub-National legislation provisions declare definitely the roles and duties of the Sub-National officials to disclose public information 10. Government capacity is low Government bodies tend neither to have set processes for responding to requests for information, nor sufficient staff capacity for doing so. Institutional capacity is weak and mechanisms for disclosure are lacking, so information is not easily accessible to the public. The Advocacy and Policy Institute s research has found that commune councilors, for example, often lack capacity. Some are newly elected and have little experience. Others are older and have difficulty absorbing new skills or taking on new responsibilities. In addition, as a lowest sub-national body, the communes tend to have limited information management systems. Government actors are reluctant to disclose information related to sensitive issues Research conducted by The Access Initiative found that the government was less likely to disclose information relating to issues it deemed politically sensitive: those cases involving issues dealing with economic land concessions, mining projects, and garment factories often involve clashing economic interests, as well as power imbalances between parties (such as poor rural villagers, factory workers and wealthy/powerful economic interests). 11 Cambodian citizens have limited awareness of their right to access public information Cambodians understanding citizens rights generally is low. They have limited awareness of their right to access public information. For example, less than 20% of respondents to a 2011 Advocacy and Policy Institute survey agreed with the statement that It is the obligation of the state to let the citizen know and receive information about what is going on around them. 12 Cambodian citizens have limited capacity to demand access to information Specific issues such as high illiteracy rates in some communities and lack of knowledge of the Khmer language in minority communities limit individuals ability to demand information. In addition, the agricultural season limits the preparedness and willingness of villagers to get engaged into information related activities to essential must do actions only Recommendations for government Pass access to information legislation The most powerful step the government can take is to pass an Access to Information Law. This law should reflect the nine principles advocated by the NGO Article 19, notably the principle of Advocacy and Policy Institute. Access to Information Baseline Survey. November2011. Pg.31. The Access Initiative Cambodia. Cambodia Assessment Report: Access to Information, Public Participation, and Access to Justice. December Pg. 5. Advocacy and Policy Institute. Access to Information Baseline Survey. November Advocacy and Policy Institute. Commune Information Disclosure Pilot Project: Findings of the Project Evaluation. December Pg

59 maximum disclosure to promote open government. The current proposed law is a good beginning, but it has to considered and revised to reflect the Cambodia context and the fundamental principles of the access to information. It is necessary that the government opens for engagement and meaningful consultation with civil society. Enforce existing laws relating to information disclose Government must to strengthen existing laws and legislation relate to information disclose enforcement and implementation. It is important that government actors enhance its legal and the judiciary must act independently and impartially. Develop a culture of openness Government actors at all levels must take steps to develop openness and disclose (disclosure information policy). They should work to disseminate information proactively and respond promptly to requests for information. It is important that government actors disclose not just information relating to non-controversial administrative matters, but also information relating to issues it may deem to be politically sensitive such local resource management, environmental governance, and land use. They should cultivate the attitude that citizens are entitled to understand government actions and decisions that affect their lives. Build capacity to disclose information Government must build its capacity to disclose information and develop an information management system. It must develop and publish clear processes for requesting and providing information. It must devote sufficient budget and staff to information disclosure processes. Access to information should be mainstreamed into government activities at all levels. Build business support Government must provide a mechanism to enable investor's access to government resources, and an accurate exchange of information could assist in better decision-making. That is, it promotes transparency of the business risks and benefits from varied courses of actions. The provision of more information allows for greater accuracy in predicting the costs of a business venture 55

60 The report endorsed by: 1. API Advocacy and Policy Institute 2. ADHOC Cambodian Human Rights and Development Association 3. AT Advocacy Team of Association NGO 4. CD Cam Conservation and Development on Cambodia 5. CLEC Community Legal Education Center 6. CEDO Cambodia Economic Development Organization 7. CHRAC The Cambodian Human Rights Action Committee 8. COMFREL The Committee for Free and Fair Elections in Cambodia 9. CSD Center for Social Development 10. EA Equal Access 11. KWVC Khmer Women s Voice Center 12. KID KID 13. KYA Khmer Youth Association 14. HRTF Housing Rights Task Force 15. MB Mlob Baitong 16. NICFEC Neutral and Impartial Committee for Free and Fair Election In Cambodia 17. OFC Open Forum of Cambodia 18. OI Open Institute 19. RAO Rural Aid Organization 20. DRHAC Democracy and Human Rights Organization in Action 21. Pact Pact Cambodia 22. PDP Center People Center for Development and Peace 23. Star K Star Kampuchea 24. VOD-CCIM Voice of Democracy Cambodian Center for Independent Media 25. WMC Women s Media Center 26. CPN Community Peace-Building Network 27. KBSC Khmer Buddhist Society in Cambodia 28. Fact Fishery Action Coalition Team 29. NGO Forum NGO Forum on Cambodia 30. TI Transparency International Cambodia 56

61 7. CHILDREN ISSUE UPR Submission on Cambodia Child Rights ( ) Contribution to the Universal Periodic Review Mechanism 18 th session of the Working Group of the Universal Periodic Review (UPR) A UPR Submission on Child Rights in the Kingdom of Cambodia (Cambodia) by the NGO Coalition on the Rights of the Child Prepared by: NGO Coalition on the Rights of the Child (NGOCRC) # 8A, Street 138, Veal Vong, 7 Makara, Phnom Penh, Kingdom of Cambodia Tel: info@ngocrc.org Website: June 2013 The NGOCRC and its member organisations working on child rights related issues welcome the opportunity provided by the Office of the High Commissioner on Human Rights to comment on the child rights situation in Cambodia. This submission will provide: A. An overview of the general situation and legal framework of Child Rights in Cambodia; B. A more detailed account of specific aspects of child rights including education, health, child protection, juvenile justice and alternative care. This section will look at the implementation thus far of some recommendations made by UN member states during Cambodia s 2009 UPR, in relation to these sub-topics. Information has been gathered from NGOCRC members and partner organizations working on these sub-topics; C. Recommendations to the Royal Government of Cambodia (the RGC ) on how to improve the situation of child rights in Cambodia. 57

62 1. This report was prepared by NGOCRC, an alliance of 45 national and international child rights NGOs working in the Kingdom of Cambodia. The process for preparing the report included a review of relevant domestic laws and regulations, policies, standards, guidelines, national strategies and plans of actions and data from various reports. Three consultations were held between March and May 2013 with NGOCRC s five thematic Working Group members, including six children and youth group representatives. In June 2013, interviews were conducted with the Secretary General of the Cambodia National Council for Children (CNCC) as well as representatives of leading local and international organisations working on child rights in Cambodia including UNICEF and Save the Children. Three training sessions were held in March 2013 and May 2013 on the UPR process with NGOCRC members and additional local and international child rights groups. I. Background and framework: Institutions and human rights infrastructure: 2. Cambodia has made great strides since its last UPR of 2009 in legislative and policy development and overall poverty reduction, and significant gains in certain social sectors. The RGC tasks the CNCC, an inter-ministerial institution, with assisting in the monitoring of childrens rights fulfilment. 1 In 2009, the composition and structures of the CNCC were reformed to establish CNCCs at the municipal/provincial level, and to set up working groups to focus on child rights within each ministry and institution. Various different mechanisms for the implementation of child protection are being instituted at the national and sub-national level such as the formation of ministerial and inter-ministerial working groups on child protection. Despite these structural reforms, the capacity of the CNCC still needs to be strengthened in order to capitalise on recent progress and to ensure efficient coordination between ministries. 3. The RGC has ratified a number of relevant human rights treaties including The UN Convention on the Rights of the Child (CRC) as well as the Optional Protocols on the Involvement of Children in Armed Conflict, and on the Sale of Children, Child Prostitution and Child Pornography. The RGC also ratified the Optional Protocol to the Convention on Elimination of Discrimination against Women (CEDAW) in 2010, and the UN Convention on the Rights of Persons with Disabilities in The RGC has ratified a number of International Labour Organization Conventions relevant to child rights including C138 (Minimum Age), C182 (Worst Forms of Child Labour), C29 (Forced Labour), and C105 (Abolition of Forced Labour). However, the RGC has not ratified the CRC third Optional Protocol on a Communications Procedure, the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities or ILO Convention number 189 on Decent Work for Domestic Workers. In Article 31 of the Constitution of the Kingdom of Cambodia, the RGC recognizes and respects human rights as enshrined in the United Nations Charter, the Universal Declaration of Human rights and all the treaties and conventions related to human rights, women s rights and child rights. 4. The Cambodian Human Rights Committee was established in 1998 in order to promote human rights and the rule of law. Its primary function is to investigate and report on complaints relating to human rights; however it is not an independent body and is widely regarded to be under the control of the executive and vulnerable to potential Government influence. 2 There are no clear rules or guidelines to govern how it should function; and as a 1 CNCC members include 22 ministries and four additional stakeholders. The full list can be found at 2 See Volume 3 National Human Rights Bodies in Cambodia Factsheet. Cambodian Center for Human Rights. March

63 result, it is impossible to assess whether they are fulfilling their roles. The RGC agreed, in principle, to establish an independent human rights committee to monitor the human rights fulfilment in However, little progress has been made since then. II: Cooperation with human rights mechanisms: 5. The RGC is cooperating with numerous human rights mechanisms relevant to child rights. In addition to the UPR process, the RGC issued a combined second and third Periodic Report to the UN Committee on the Rights of Child in 2010, the first State party report since In 2011, the RGC submitted a combined fourth and fifth State party report to the Committee on the Elimination of Discrimination against Women. 4 An action plan was developed by members of government ministries/institutions at the national and provincial level, with national and international NGOs, members of the National Assembly and Senate, UN agencies and children to implement the Committee on the Rights of Child s Concluding Observations issued in In its Concluding Observations, the Committee welcomed efforts by the State party to implement the concluding observations from the State party s initial report, but expressed regret that some of its concerns and recommendations had not been sufficiently addressed. The Committee welcomed the Constitutional Council Decision stating that the courts must consider the Convention when interpreting Cambodian law and deciding cases, but expressed concern that in practice, the provisions of the UNCRC are rarely invoked or directly enforced by tribunals, courts and administrative authorities. III. Implementation of international human rights obligations: 1) Education 6. Providing education opportunities to all children is central to the RGC s poverty reduction and socio-economic plans. 5 The Ministry of Education, Youth and Sport (MOEYS) reported a 96.4% enrollment rate for primary schools with an equitable gender balance in 2010/2011, 6 but only 35% enrolment for lower secondary school. 7 Early childcare and development (ECCD) provisions are scarce; the net enrolment for pre-school was only 11% in A comparison of CSES data 9 and MOEYS data suggests that more children enrol than actually attend school. Completion rates for Grade 9 in 2011 were worryingly low for both boys (42.6%) and girls (41.6%) and had significantly decreased in the past three years from an average of 48.7% in The RGC is not on course to achieve Cambodian Millennium Development Goal 2.7 which is to increase the completion rate from grade 1 to 9 from 33% in 2001 to 100% in Upper-secondary school education opportunities remain limited; the net enrolment ratio for upper secondary schools in was estimated at 19.3%, with a completion rate of just 26.1% CRC/C/KHM/2-3 4 CEDAW/C/KHM/4-5 5 National Strategic Development Plan (NSDP) Royal Government of Cambodia Annual Progress Report on The Implementation of the NSDP Update with an Overview of Economic and Social Progress, Including in Select CMDGs. Ministry of Planning. Royal Government of Cambodia. December EMIS Office, Department of Planning (March 2011) Education Statistics and Indicators 2010/2011. MoEYS 8 UNICEF, Division of Policy and Practice, Statistics and Monitoring Section. May The Cambodia Socio-Economic Survey (CSES) is a household survey used to monitor the NSDP and progress towards the Millennium Development Goals Annual Progress Report on The Implementation of the NSDP Update with an Overview of Economic and Social Progress, Including in Select CMDGs. Ministry of Planning. Royal Government of Cambodia. December Ministry of Education, Youth and Sports. Education Strategic Plan Pg 3. September

64 7. Other indicators highlight a wide variation in education levels contrasted with income, location, ethnicity, disability and family poverty. 46.8% of children in urban areas attend upper secondary school, compared with only 14.9% in rural areas UPR Recommendations number 87 and 88 request the RGC to strengthen its educational system and education for all programmes, including for women and persons with disabilities, and that additional measures be taken to support access to education of minority children to help them to maintain and develop their own traditions and languages. 13 MOEYS indicators do not reflect the disparities between different social groups including minorities and the rural poor. It is estimated that as many as 25% of children with a disability never access any form of education Teacher salaries are low which contributes to the severe shortage of teachers and high class sizes, particularly in rural areas. 14 The problem is particularly acute in primary schools. Based on salary ranges provided by MOEYS Department of Human Resource Management, the minimum salary rank of a primary teacher starts from just USD41.38 per month, 15 (the minimum wage for a garment worker in Cambodia was raised in 2013 to $80 per month in comparison). 16 School tuition is free in Cambodia, however unofficial school fees remain a barrier to education, especially for children from the poorest families. It is common practice for teachers to withhold curriculum content during the school day, forcing students to pay for afternoon tutorials where the omitted areas are covered. 17 Furthermore, a preliminary study conducted by Save the Children in 2010 suggested 80% of students surveyed were beaten, verbally abused or both, by their teachers. 18 As many as 39% of the children surveyed did not feel safe and secure in school In line with the Government s Education Strategic Plan and in accordance with Article 13 of the ICESCR and Article 28 of the CRC, the RGC is largely succeeding in its obligation to secure the right to education in terms of improved accessibility and availability of education, primary education in particular. However, significant challenges remain in keeping children in school ensuring education is of good quality and that children are actually learning in class. The RGC is broadly failing in its obligation to secure rights in education to standards of acceptability in terms of quality, and adaptability in terms of appropriate education for vulnerable and minority groups. Recommendations: 10. By 2015, the RGC should increase budget allocation for children s education from 2.4% (2009) of GDP to a minimum of 3.8% of GDP, to match education spending in other developing South East Asian states. 20 The RGC should focus on improved monitoring and evaluation, effective spending and expenditure tracking to ensure that budgets are not underspent and that investment is in line with the real needs of children. The increased budget should be used to target teacher capacity building, increasing the incentives for teachers and 12 EMIS Office, Department of Planning (March 2011) Education Statistics and Indicators 2010/2011. MoEYS 13 Cambodian Disabled People Organisation, UNESCO Institute for Statistics. Available at World Bank World Development Indicators for Cambodia, states that Cambodian primary school class sizes contained an average of 47 pupils in 2011, well above the regional average and the UNESCO target pupil-teacher ratio of Assessing the Impacts on Teacher Motivation. NGO Education Partnership and Save the Children. June See for example Assessing the Impacts on Teacher Motivation. NGO Education Partnership and Save the Children. June Education Baseline, Save the Children, Pg 49. February Ibid 20 More Efficient Government Spending for Strong and Inclusive Growth. Integrated Fiduciary Assessment and Public Expenditure Review (IFAPER). Poverty Reduction and Economic Management Unit. World Bank. November

65 enforcement of relevant policies and laws to ensure a safe learning environment in schools. The RGC should immediately increase ECCD access and recruit and retain more pre-school and primary school teachers. The RGC should make increased investment in higher education and vocational skill training in order to raise the quality of outcomes, so that more youth can compete in employment markets which will become more competitive from 2015 onwards when the ASEAN region allows free movement of skilled labour. 2) Health 11. Whilst overall RGC spending on health has increased, out-of-pocket spending still places a heavy burden on the poor, making healthcare inaccessible for all. 21 According to civil society experts interviewed as part of the consultation process, health practitioners often don t adhere to the Professional Code of Conduct and charge service-users additional fees. Cambodia has achieved remarkable health gains over the last five years; the maternal mortality ratio in 2010 was 206 deaths per 100,000 live births, down from a rate of 472 in The Under-five mortality ratio was 54 deaths per 100,000 live births, down from 83 in Immunization against six vaccine-preventable diseases (tuberculosis, diphtheria, whooping cough, tetanus, polio, and measles) is crucial to reducing infant and child mortality, and data from the 2010 Cambodia Demographic and Health Survey (CDHS) suggests that 74% of children aged months were fully vaccinated by 12 months of age, with little wealth-specific difference However, the CDHS reported that nationally, 40% of children under age 5 are stunted, and 14% are severely stunted. The disparity in stunting prevalence between rural and urban children is substantial: 42 % of rural children are stunted, as compared with 28% of urban children. 24 Stunting is largely the result of malnutrition, food insecurity and poor access to health care, and affects both mental and physical development. Whilst the percentage of children stunted has fallen from 50% in 2000 to 40% in 2010, malnutrition is still widespread, is concentrated in rural areas and is inversely related to the wealth of childrens families. Likewise, childhood mortality rates also varied significantly - infant mortality in urban areas is approximately three times lower than infant mortality in rural areas (22 deaths per 1,000 live births versus 64 deaths per 1,000 live births) Drug and alcohol use by children and young people appears to be escalating, due in part to the lack of awareness raising about the dangers of drinking alcohol for children and the fact that there is no legal age limit for buying and using alcohol in Cambodia. Recommendation 14. The RGC should immediately strengthen monitoring and evaluation in the health system and provide opportunities for citizens to give feedback on public service delivery in order to increased social accountability at district and commune levels. The RGC should develop indicators that better reflect regional and socio-economic variables as part of its efforts to improve health care provision for minority groups and the rural poor. The RGC should develop strategies focused on behavioural change to a) reduce stunting from 40% to 20% by 21 Ibid 22 Cambodia Demographic and Health Survey (CDHS) Published by the National Institute of Statistics and Ministry of Health. Measure DHS Project. Maryland, US. September Ibid 24 Ibid 25 Ibid 61

66 2018 by raising awareness on the importance of nutrition and complementary feeding, b) reduce alcohol and drug abuse through legislative and policy measures and social campaigns established by 2015, and c) enforce the practice of the Professional Code of Conduct immediately for health staff and investigate and punish all violations. 3) Child Protection (i) Child Labour 15. Child labour is still prevalent in Cambodia and is closely linked to and influenced by a number of factors, most notably, poverty, school accessibility and enrolment levels. Using data from the 2010 CSES, UNICEF calculated that 11.38% of the total labour force in Cambodia is below 18 years old, that approximately 18% of children are child workers, with female employment slightly above male employment, and that almost one fifth of children work for a livelihood or contribute to the livelihood of their household. 26 The International Labour Organization (ILO) reported in 2012 that child labour is on the rise across all major categories, including hazardous work, 27 despite the fact that the child population has remained fairly stable since Many children work in dangerous activities in agriculture such as tobacco and cassava cultivation, rubber and salt production and the seafood industry. The Labor Law (1997) allows children as young as 12 years to work in light and nonhazardous employment which does not interfere with their education. The minimum legal admission age for general employment is 15 years, while for hazardous work (the definition of which is contained in the law), it is 18 years. 28 Resource and capacity constraints continue to undermine practical enforcement of the Labor Law at the formal enterprise level. The RGC reported that in 2010, not a single employer was prosecuted for violations of laws related to child labour. 29 The Labor Law focuses on paid employment in formal enterprises only and does not address informal workplaces where the bulk of child labour is found. Furthermore, the Labor Law does not apply to domestic or household services in which many children are now engaged and where they are particularly vulnerable to labour exploitation. The Labor Law specifies that inspectors from the MOLVT will oversee compliance of the law s provisions, however the MOLVT has limited number of inspectors and inspections are not carried out in informal or unregistered places of employment where child labour exploitation is most acute. 16. The ILO reported that in 2009, the child labour rate was four times higher among 5 to 11 year olds in rural than urban areas (21.3%, compared with 5.4% in urban areas), more than three times higher among 12 to 14 year olds (43.1% versus 13.3%), and more than two times higher among 15 to 17 year olds (18.2% versus 38.5%). 30 This is another reflection of the inequality and equity divide in Cambodian society, particularly in regard to persistent and widespread poverty in rural Cambodia and the lack of opportunities for post-primary schooling in these areas. 17. The RGC has taken a number of steps to better regulate and reduce child labour. The Ministry of Labor and Vocational Training (MOLVT), with Department of Child Labor, developed the National Action Plan on the Elimination of the Worst Forms of Child Labor 26 An Analysis of Child Deprivation and Inequality in Cambodia. Findings from Three Surveys: CSES 2010, CDHS 2010 and CDB UNICEF. November Decent Work Country Profile. Cambodia. International Labor Organisation Labor Law Article Written replies by the Government of Cambodia to the list of issues (CRC/C/KHM/Q/2) related to the consideration of the second periodic report of Cambodia (CRC/C/KHM/2). Committee on the Rights of the Child. May 2012 Fifty seventh session. 30 May 17 June Decent Work Country Profile. Cambodia. International Labor Organisation

67 The National Poverty Reduction Strategy and the Rectangular Strategy Phase II contains specific child labour reduction targets, and in December 2011, the Government adopted the National Plan of Action on the Suppression of Human Trafficking, Smuggling, Labor, and Sexual Exploitation which includes a section on child labour. The National Sub-Committees on Child Labour, which preside over strategic actions on child rights and child labour and other forms of commercial exploitation of children at the subregional level, have taken major steps to eliminate the worst forms of child labour in Kep, Kampot, Siem Reap, Beantey Meanchey (Poipet) and Phnom Penh provinces. 18. Despite these efforts, the RGC seemingly lacks the capacity and will to properly enforce the Labour Law. Law enforcement is reportedly still weak and impunity endemic in the labour sector. 31 Neither the falling poverty rates nor rising school enrolment rates since 2009 appear to have been sufficient to reverse the rising trend in child labour. UPR Recommendation number 33 requested that the RGC intensifies its fight to eliminate forced labour and the severest forms of child labour. 32 Although some progress has been made on the regulatory side, the RGC is unlikely to meet the Cambodia Millennium Development Goal (CMDG) target of reducing child labour as a proportion of total children to 8% by Recommendation 19. By 2018, the RGC should adopt national regulations that promote and protect the rights of children. Regulations should address children working in the informal sector and include provisions covering domestic work. The RGC should immediately increase monitoring inspections of informal and regular places of work, prosecute all employers who violate the Labor Law, and impose the maximum available penalties for employers who falsify documents enabling children to qualify for employment abroad and for other purposes. The RGC should also ratify ILO Convention number 189 on Decent Work for Domestic Workers by (ii) Trafficking and Sexual Abuse 20. Cambodia is a source, transit, and destination country for men, women, and children who are subjected to forced labour and sex trafficking. Cambodian children migrate, often with their parents, to countries within the region primarily Thailand and Malaysia for work, and many are subsequently subjected to sex trafficking, domestic servitude, debt bondage, or forced labour. Vietnamese women and children, many of whom are victims of debt bondage, are transported to Cambodia and forced into commercial sexual exploitation. Although reliable statistics are scarce, child abuse and domestic violence are believed to be common, and child rape remains a serious problem. 21. In 2010, the NGO Joint Statistics Database Report on Rape, Sexual Trafficking and Sexual Exploitation report identified 39 cases of sexual trafficking involving 61 suspected traffickers % of victims were under the age of 18. In 2011, 71 cases were reported, 75% of which involved children. The report findings suggest that the median age of victims has fallen from 18 years old in 2007 to 16 years old in Of the 33 cases for which data 31 Cambodia Country Report on Human Rights Practices. United States Department of State Report of the Working Group on the Universal Periodic Review. Cambodia. A/HRC/13/4. Page 16. January NGO Joint Statistics Database Report on Rape, Sexual Trafficking and Sexual Exploitation in Cambodia Ibid 63

68 is available in 2011, 17 cases were investigated by the police, and only 3 resulted in a criminal trial. 35 MOSAVY reported receiving and referring 884 trafficking victims to shelters and the local police referred 247 victims of sex trafficking to province-level Departments of MOSAVY in Whilst the number of cases recorded vary and may not reflect the true number of cases occurring, low investigation and prosecution rates demonstrate alarming weaknesses in the criminal justice system. 22. ECPAT-Cambodia recorded 539 cases of rape in 2010, 76.9% of which involved victims under the age of % of offenders were under the age of Alternative sources corroborate these findings. In 2011, ADHOC received 476 complaints of rape direct to its offices, 72.26% of which involved victims under the age of Out of the 476 cases recorded, only 246 cases, or 51.68% of perpetrators, were detained and convicted. In an additional 120 cases, or 25.21%, the perpetrators escaped UPR Recommendation number 30 requested that the RGC undertake due and timely investigations of all reported cases, punish the perpetrators, implement necessary rehabilitation programmes for victims, and intensify Government efforts to raise public awareness against this negative phenomenon to fight persistent traditional stereotypes The RGC has taken some steps to address trafficking such as enacting a temporary ban on recruiting, training, and sending domestic workers to Malaysia in However, the prevalence of abuse, trafficking and child rape, and corresponding low conviction rates indicate that implementation of relevant laws including the Law on the Suppression of Human Trafficking and Sexual Exploitation, the Criminal Code, the Civil Code the Subdecree 190 on the Sending of Migrant Workers Abroad has not been effective. Understanding and interpretation of applicable laws is weak and inconsistent. The US Department of State Trafficking in Persons report for 2013 stated that the RGC failed to make progress in holding trafficking offenders and child sex tourists accountable because of inadequate prosecutions and sentences, and its efforts to protect victims remained inadequate. 41 For example, although several ministries contributed statistics to the trafficking database, the information was inaccurate and incomplete. 42 Systematic procedures for assisting Cambodian trafficking victims abroad are also lacking. Improved protection, rehabilitation and re-integration programmes, particularly in rural areas targeting vulnerable groups, both in and out of schools, are urgently required. Recommendation 24. The RGC should immediately strengthen law enforcement and increase efforts to prosecute perpetrators of trafficking and sexual abuse as well as corrupt officials complicit in the crimes. The RGC should immediately develop and maintain a comprehensive and reliable database on trafficking cases and ensure that information is continually shared with civil society groups, so that the scale of the problem can be properly identified and appropriate protection, rehabilitation and reintegration programmes can be designed. 35 Ibid 36 United States Department of State, 2012 Trafficking in Persons Report - Cambodia, 19 June NGO Joint Statistics Database Report on Rape, Sexual Trafficking and Sexual Exploitation in Cambodia Women and Children s Rights in Cambodia, Situation Report ADHOC. Published Feb Ibid 40 Report of the Working Group on the Universal Periodic Review. Cambodia. A/HRC/13/4. Page 16. January United States Department of State, 2013 Trafficking in Persons Report Cambodia. 42 United States Department of State, 2012 Trafficking in Persons Report - Cambodia. 64

69 (iii) Alternative Care 25. The RGC made significant progress in developing policies and minimum standards for the care, support and protection of orphans and vulnerable children. This was in response to the proliferation of private orphanages and care homes established in recent years, which are replacing more traditional forms of care. The RGC stated that a total of 10,913 orphan children were cared for in 223 registered centres in According to government statistics, only 26% of these children have actually lost both parents. 44 Poverty and lack of access to education are the main reasons why parents send their children to orphanages. NGOs reported that many orphanages are actively recruiting children in poor provinces by convincing, coercing or even paying parents to give their children away. Village chiefs also encourage poor parents to send children to institutions to access education. Through this kind of encouragement and recruiting, many parents believe that their children would be better off in such centres. 45 Children face increased risks of neglect and abuse in residential care, and in cutting ties with their families they are often unable to return to their communities. When youths finally leave orphanages, they are particularly vulnerable as they are often not prepared or adapted to community life and struggle to find their place in society as a result. 26. The 2006 Policy on Alternative Care for Children and the 2008 Minimum Standards on Alternative Care for Children set out initiatives on alternative care. Article 9 of the CRC underlines the right of a child not to be separated from their parents unless absolutely necessary, and the RGC policy on Alternative Care underlines the importance of children growing up in a family environment. The Ministry of Social Affairs, Veterans and Youth Rehabilitation (MoSVY) is responsible for monitoring the situation of residential and alternative care, however, the RGC s budget to monitor alternative care institutions and to care for children without parents or in difficult circumstances is still insufficient. This results in children suffering from unsafe and unhealthy conditions in state-run and private orphanages centres. Recommendation 27. There is an urgent need to develop capacity to support increased monitoring and regulation of public and private alternative care institutions to prevent abuse. Progress in policy development must now be met with proper budgeting of state-run institutions and enforcement of minimum standards. MOSVY referrals to state or private alternative care institutions should be in line with the UN Guidelines for the Alternative Care of Children and respect the basic principles of necessity and appropriateness. (iv) Juvenile Justice 28. There is still no independent mechanism to receive and address complaints from children concerning violations of their rights. Necessary procedures and facilities for dealing with minors in the criminal justice system are still lacking. As a result, children are routinely processed through the criminal justice system and prosecuted as adults. The 2009 Penal Code sets the legal age of criminal responsibility at 18 years of age. Article 39 states that minors who commit an offence are subject to measures of surveillance, education, protection and assistance. However, the court may pronounce a criminal conviction against a minor of 14 years of age or more, if the NSDP Update Royal Government of Cambodia. November 2009 Alternative Care Report, Ministry of Social Affairs, Veterans and Youth Rehabilitation, 2008 Myths and Realities about orphanages in Cambodia. Friends International. 65

70 circumstances of the offence or the personality of the minor justify in doing so. In practice, police and prosecutors do not adhere to the provisions and families and local authorities often lack documentation to prove a child s age due to internal migration, forced eviction or because local authorities failed to provide birth registration documents. Estimates from civil society experts during consultations suggest that up to 50% of children charged with a felony are treated as adults in the criminal justice system. Children from poor families face particularly high risks of unlawful deprivation of liberty as they cannot afford legal representation. Legal aid, provided largely by NGO s, is particularly scarce in rural areas. Children face the risk of violence at each stage of the process when they are in contact with the law, at time of arrest, when held in detention and at court. 29. The draft Law on Juveniles in Conflict with the Criminal Code (formerly known as the Juvenile Justice Bill) has been revised a number of times since 2009 in an attempt to ensure adherence to international norms, the Criminal Code and the Criminal Procedures Code. Extensive consultations have been held and inputs have been made by development partners, UNICEF and civil society working groups. Child rights have been integrated into the law and it is seen by civil society members as a progressive piece of legislation. The draft law states that all juveniles under the age of 18 who are in conflict with the criminal code should be assigned specialist staff if deprived of their liberty. The draft also states that separate juvenile courts will be established in every province with specialized police, clerks, judges, and prosecutors assigned to juvenile cases. Provisions are included detailing the roles and responsibilities of social workers specialized in juvenile cases, and privacy shall be guaranteed for juvenile victims giving evidence. One crucial component missing from the current draft is a minimum age for children to be processed through the criminal justice system and in accordance with the draft law. Recommendation 30. The RGC should immediately adopt a Law on Juveniles in Conflict with the Criminal Code that adheres to international standards. The RGC should develop a Child Protection Law and Policy focusing on abuse in different settings in consultation with civil society and development partners during the next term of Parliament. The Child Protection Law should be prioritised in the National Strategic Development Plan and provided sufficient budget allocation for implementation in all relevant ministries by

71 Annex I 1) NGOCRC consists of 45 national and international organizations: 2) Cambodia Children Against Starvation and Violence Association (CCASVA) 3) Cambodia League for the Promotion and Defense of Human Rights (Licadho) 4) Cambodia Organization for Children and Development (COCD) 5) Cambodian Children Orphanage for Living & Training (CCOLT) 6) Cambodian Volunteers for Community Development (CVCD) 7) Center for Children s Happiness (CCH) 8) Centro Italiano Aiuti all'infanzia (CIAI) 9) Cham Khmer Islam Minority Human Rights and Development Association (CKIMHRDA) 10) Child Rights Foundation (CRF) 11) Child Wise Cambodia (CWC) 12) Children and Life Association (CLA) 13) Children and Poor Communities Development Organization (CPCDO) 14) Community Council for Development Organization (CCD-Takeo) 15) Development Khmer Kid Prosperity (DKKP) 16) Enfants & Développement (E&D) 17) Hagar Cambodia (HC) 18) Happy Tree 19) Healthcare Center for Children (HCC) 20) International Christian Mission (ICM) 21) Investing In Children And Their Societies (ICS) 22) Jeannine and Billy s Children s Foundation (JBCF) 23) KHEMARA 24) Khmer Kampuchea Krom for Human Rights and Development Association (KKKHRDA) 25) Khmer Youth Camp for Culture (KYCC) 26) Komar Etprumden Kampuchea (KnK Cambodia) 27) Krousar Thmey 28) Legal Aid of Cambodia (LAC) 29) Mith Samlanh (MS) 30) Operations Enfants du Cambodge (OEC) 31) Plan International Cambodia (Plan) 32) Protection of Juvenile Justice (PJJ) 33) Rehabilitate the Children and Youth for Cambodia Development (RCYCD) 34) Riverkids Foundation (RKF) 35) Rural Aid Organization (RAO) 36) Sacrifice Families and Orphan Development Association (SFODA) 37) Save Incapacity Teenagers (SIT) 38) Save the Children International (SCI) 39) Sovann Komar LCC (SK) 40) Street Children Assistance and Development Program (SCADP) 41) Tdh-Germany-Cambodia 42) Terre Des Hommes Netherlands-Cambodia (TdH-NL Cambodia) 43) The Cambodian Centre for Protection of Children s Rights (CCPCR) 44) Vulnerable Children Assistance Organization (VCAO) 45) Wathnakpheap (WP) 46) World Vision Cambodia (WVC) Children and Youth Networks: 47) Cambodia Children and Young People Movement for Child Rights (CCYMCR) 48) Child Advocate Network (CAN) 67

72 Annex II List of materials used during research: 1 st and 2 nd National Report on the Implementation of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict Cambodian National Council for Children. 1 st and 2 nd National Report on the Implementation of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, Cambodian National Council for Children. Alternative Care Report, Ministry of Social Affairs, Veterans and Youth Rehabilitation Alternative Report on the Implementation of the United Nations Convention on the Rights of the Child (UNCRC) Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC) NGO Coalition on the Rights of the Child (NGOCRC) February Alternative Report on the Implementation of the UN Convention on the Rights of the Child in Cambodia, NGO Committee in the Rights of the Child (NGOCRC) An Analysis of Child Deprivation and Inequality in Cambodia. Findings from Three Surveys: CSES 2010, CDHS 2010 and CDB UNICEF. November 2012 Annual Progress Report on The Implementation of the NSDP Update with an Overview of Economic and Social Progress, Including in Select CMDGs. Ministry of Planning. Royal Government of Cambodia. December Assessing the Impacts on Teacher Motivation. NGO Education Partnership and Save the Children. June 2012 Baseline Study for the IKEA Foundation Project: Fighting Discrimination and Violence in Schools for Inclusive and Child Friendly Quality Education. Save the Children Cambodia Country Report on Human Rights Practices. United States Department of State Cambodia Demographic and Health Survey (CDHS) Published by the National Institute of Statistics and Ministry of Health. Measure DHS Project. Maryland, US. September 2011 Child Rights Situation Analysis in Cambodia: Summary Report. Save the Children Consideration of reports submitted by States parties under article 44 of the Convention. Concluding observations: Cambodia. Committee on the Rights of the Child. CRC/C/KHM/CO/2. June 2011 Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women Combined fourth and fifth periodic reports of States parties. Cambodia. Committee on the Elimination of Discrimination against Women CEDAW/C/KHM/4-5. August Consideration of reports submitted by States parties under article 44 of the Convention. Second periodic report of States parties due in Cambodia. CRC/C/KHM/2-3. Committee on the Rights of the Child. June Criminal Code. Kingdom of Cambodia Criminal Procedure Code. Kingdom of Cambodia Decent Work Country Profile. Cambodia. International Labour Organization Education Statistics and Indicators 2011/2012. Ministry of Education, Youth and Sports. EMIS Office. Department of Planning. February Labor Law, Kingdom of Cambodia Migration in Cambodia: Report on the Cambodian Rural Urban Migration Project (CRUMP). Ministry of Planning. August

73 Ministry of Education, Youth and Sports. Education Strategic Plan September 2010 More Efficient Government Spending for Strong and Inclusive Growth. Integrated Fiduciary Assessment and Public Expenditure Review (IFAPER). Poverty Reduction and Economic Management Unit. World Bank. November 2011 National Human Rights Bodies in Cambodia Factsheet. Volume 3. Cambodian Center for Human Rights. March 2012 National Strategic Development Plan Royal Government of Cambodia National Strategic Development Plan Update Royal Government of Cambodia. November 2009 NGO Joint Statistics Database Report on Rape, Sexual Trafficking and Sexual Exploitation in Cambodia 2010 NGO Joint Statistics Database Report on Rape, Sexual Trafficking and Sexual Exploitation in Cambodia 2010 Report of the Working Group on the Universal Periodic Review. Cambodia. A/HRC/13/4. January 2010 Report Reply to the List of Issues Raised by the Office of the Special Representative of the Secretary General on Violence against Children in Cambodia, Cambodian National Council for Children. The Middle Way. Bridging the Gap between Cambodian Culture and Children s Rights. NGO Committee in the Rights of the Child (NGOCRC) UNICEF, Division of Policy and Practice, Statistics and Monitoring Section. May 2008 United States Department of State, Trafficking in Persons Report Cambodia United States Department of State, Trafficking in Persons Report Cambodia Women and Children s Rights in Cambodia, Situation Report ADHOC. February 2012 Written replies by the Government of Cambodia to the list of issues (CRC/C/KHM/Q/2) related to the consideration of the second periodic report of Cambodia. Committee on the Rights of the Child. (CRC/C/KHM/2). May

74 8. YOUTH ISSUE JOINT SUBMISSION TO HUMAN RIGHTS COUNCIL SUBMITTED BY: Youth Committee for Unity And Development (YCUD) and Youth Organizations working toward youth empowerment and enhanced youth participation in social development in Cambodia. Contact Person: Mr. Chamroeun Mak, Chairman of YCUD Board of Director Address: N. 135A, Street 259, Sangkat Toek La-akI, Khan Toulkok, Phnom Penh, Kingdom of Cambodia CCC.Box: 275 Telephone: +855 (023) Fax: +855 (023)

75 Joint Submission to the Universal Periodic Review of Cambodia on Issues Affecting Youth Development in Cambodia JUNE 2013 Cambodia s youth between the ages of 15 to 30 make up 4,384,407 or percent of the total population1. Cambodia has taken ownership to protect the rights of the Cambodia poor and vulnerable populations, especially high-risk situations faced by Cambodia youth2. Approximately 25 % or close to 1 million Cambodian Youth live and work in high-risk situations such as entertainment workers, men who have sex with men, drug users, domestic workers, factory workers, street youth, unemployment youth, construction workers, migrant workers, gangsters etc. Hence, in this year 2013, Young people and youth-led organizations and networks have been mobilizing, and discussing to find the ways for joint submission to the Universal Periodic Review on Issues Affecting Youth Development in Cambodia. Below are the key issue affecting by Cambodian youth and recommendation from youth organizations: Quality of Education Cambodia Education has significant and substantial growth in many educational development indicators in recent years. The National Primary Net Enrolment Ratio (NER) has risen from 83.8 percent in 2000 to 94.4 percent in 2008 and to 96% in 2012, close to the CMDG target of 100 percent in The national Youth Literacy Rate (15-24 yrs old) has increased from 76.3 percent in 1998 to 84.7 percent in This increase reflects the expansion of access to primary education nationwide in the last ten years. While there are substantial achievements in education, there is still a great deal which must be done to achieve the CMDG and EFA targets, particularly at the lower secondary level particularly in geographic north-eastern locations of Cambodia where most habituated by indigenous peoples communities. The key challenges include: Low completion rates (90% in Primary School, 42% in lower secondary school and 28% in upper secondary school) are also due in part to the low quality of education. There is no official indigenous bilingual education system in place yet as a demanded from the indigenous peoples communities while little efforts have been made by local organization. Low Net Enrollment rate in lower secondary school (35%) and upper Secondary School (20%) leading to difficult milestones toward CMDG High Drop-Out Rate especially in lower secondary school (Grade7:22, Grade8:20 and Grade9: 23%. Reflecting to indigenous students, the higher education for indigenous youth/students is tough thing for them to access to due to lack of support for accommodation and other means for pursuing their study in the city. There is lack of support from RGC. Up to now about less than 50 indigenous youth/students are graduated from associate and bachelor degree. Academic qualification of teachers is still very low (only 17% of teacher are graduated and 82% of them are secondary school.. Teachers salaries are also very low (50$ to 150$ per month), making it difficult to attract and keep qualified teachers. Weak functions of Community Participation: Cambodia has recently adopted a Child Friendly School approach, striving to foster greater community involvement in school level planning and decision-making through School Support Committees (SSC). Parents and communities need information on school finances and other aspects of school performance, including teacher performance, and have the ability to use this information to voice their 71

76 expectations or concerns. Parental and community participation is another excellent entry point for improved governance at the local level 1 Relevance: The issue of the direction of education in Cambodia -- whether it leads to employment in the civil service, the modern urban sector or provides rural children with the capabilities needed to participate meaningfully in the development of their communities, still needs to be fully resolved. Given increased risky behaviors by youths, a comprehensive life skills education, including sexual, reproductive health/hiv, gender equality, gender based violence and drug related education, is of critical importance to improved health, gender equality and other societal outcomes. 2 Early Childhood Education (ECE): ECE is an important element in education as it develops cognitive abilities that will later contribute to students progress in school and reduce drop out and repetition rates. The ECE enrolment rate increased from 10.8 percent in the school years to 15.6 percent in the school years 3. Recommendation: Bolstering Public Administrative Enterprise of All Schools with effective Exemption System for poor and poorest particular indigenous youth. This option is to increase quality of education, reduce dropout rate and motivate teachers and staff through public administrative enterprise. Investing and enhancing the functions of the 5 main oversight committee such as Commune Committee for Women and Children-CCWC, Parental Association, School Management Committee, Commune Councils and Commune Committee for Education for All Reforming Cambodia Education System to match and link with Job Market through regularly updated job market and employment law and policy development. RGC should support the official bilingual education systems in every location habituated by indigenous communities and provide other means to support their children to pursue higher education especially when they come to study in Phnom Penh. Youth Employment In Cambodia, the working aged population is defined as years 4 of age and employment is all persons who worked at least one hour during the reference period, the past seven days, or had a job/economic activity from which they were temporarily absent.. Unpaid family workers are considered employed. Definition in CSES 2009, MoP also indicated that status in employment refers to the status of an economically active person with respect to his or her employment. The percentage of Cambodian youth of both sexes who were currently employed in the past 12 months is high (68.7%) but more than 64% of them are as self-employed agricultural workers or currently not working. It also shows that only 2.6% are working in services and nearly 17% are working in industries as skilled manual laborers. Addionally, only 22.5% of Cambodia Youth aged are not employed in the past three months 5 and 42.1% of educated Cambodia Youth are not employed in the past 12 months. The low job growth and high number entrants into the workforce has serious implications for youth unemployment and increased poverty. According to a recent survey by the Cambodia CCA 2009, UNDP These issues are elaborated further in the Youth Situation Analysis [UNCT 2009]. CCA 2009, UNDP Cambodia Socio Economic Survey 2009 CDHS 2010, MoH/MoP, CDHS raw data analysis, Macro. 72

77 Federation of Employers and Business Associations (CAMFEBA), the low absorption rate is due to a skills mismatch from a lack of data and information on the labour market. Recommendation: RGC should develop Employment Law, Employment Policy and National Strategic Plan for Employment Enhancement and education and job market matching Strategy RGC should reform Education System to match job market and conduct project for employment in all sectors (Private Sector, Public Sector and Civil Society Sector) Enforcing the implementation of ASEAN Declaration on Promotion and Protection of Migrants and their families Develop and Enforcement Minimum Wage Policy in systematic and non-systematic economic sectors Gender Equality Turning best practices and lessons of MDG-Goal3, is central point for sustainable development of equal and qualified functions of women and men in Global status of Gender Gaps is over 100. The changing of Cambodia Women in economic participation and opportunity, educational attainment, social protection and political empowerment has been significantly contributed to the Cambodia Development. Gender disparities in economic participation and opportunity still remain, primarily because of social norms and low levels of social protections. Due to low levels of literacy and education of women and girl child currently in the work force, there are limited livelihood alternatives for most women workers and low representation of women in higher level occupations and decision-making positions. Rural women included young girls account for 80 percent of food production, and more than 65 percent of all women are farmers. Half of the women farmers are illiterate or have less than a primary education. For the most part, women in agriculture are unpaid family workers. Training opportunities for women especially rural and remote women are limited and inappropriate. Women entrepreneurs face gender-based barriers to starting and growing their businesses, including discriminatory property, matrimonial and inheritance laws and/or cultural practices; limited mobility voice and representation; and an unequal share of family and household responsibilities. The lack of adequate productive job creation and decent work in rural areas is contributing to increased migration into urban areas and neighbouring countries. A MoWA survey in 2009 revealed that up to 46 percent of people still find the lowest forms of physical violence against women (e.g throwing something at the other, pushing or shoving, slapping, kicking, shaking, punching) acceptable, always or under certain circumstances. The MoWA 2009 report acknowledges that while levels of violent physical abuse (throwing acid, choking, burning, threatening with gun or knife) have dropped by more than 50 per cent since 2005, it is disturbed to note that about 10 percent of the population still finds these extreme forms of violence acceptable under certain circumstances. Most female victims of violence still do not seek help and, if they do, most often seek help from relatives, friends or commune or village authorities, not from the police, courts or professionals. A report from UNAIDS in 2011 quoted data to reveal that 35-45% of local authorities felt a 73

78 husband was justified in engaging in extreme types of violence if wives argued with husbands, did not obey him, or did not show respect (UNAIDS 2011). Recommendation: Provide better political enabling environment for young women to have free and safe in participation in politic Young women perspective in CEDAW report and national policy debate --- Provide cash transfer and livelihood options whose female headed households when their husband who are arrested and sentenced to prison due to domestic violence and other committed crimes. Enforce National and local democratic spaces and mechanisms through eliminating the fear of participation and building capacity of rights holders. Sustainable Environment Cambodia has huge endowments of natural resources such as deforestation, natural disasters (drought & flood) unfertile land, land degradation, land grabbing, uncontrolled mineral, gas exploitation, water pollution, climatic conditions which represents potential comparative advantages for agriculture. 81% of the population living in the rural areas, and over 60% of the population directly or indirectly depends on income generated in agriculture, forestry, fisheries and agriculture. In-depth Analysis, based on CMDG 2011 indicated that Cambodia forest cover is 57.59% but 3,936,481 hectares (2,036,170 ha of Economic land concessions, 1,900,311 ha, mining concessions) have been granted as mining & economic land concessions, covering 22 % of Cambodia s surface area, which totals 17,650, 931 ha, (CIA World Fact Book 2011) Anyway, there is no nationwide study in last five year ( ). Recommendation: The need to address current vulnerabilities and short-term shocks and crises (based on health, social safety nets and Disaster Risk Reduction) National movement on Bio-digesters for Cambodia Population through providing concession and full package of loan to reduce firewood and charcoal consumption as well as improve sanitation. Enhancing people participation in forest protection and community fishing lots through strengthening and expanding the roles of forest community and fisheries community and include all those main activities and program in commune development plan and commune investment. National Survey on awareness of climate change and climate adaptation among general public and nationwide forest cover assessment. Youth participation One of the six overarching goals of the RGC s National Policy for Youth Development is to: Enable youth to share their perspectives, opinions, and decisions in their community and in the broader national development context In addition to the goal of the National Youth Development Policy, several national frameworks have established the rights and critical role of youth in Cambodia s development process. Article 74

79 34 of the Constitution gives Cambodian citizens over 18 of either sex the right to vote, and to stand as candidates for election if they are at least 25. The National Strategic Development Plan of also acknowledges that youth are a critically important group to include in plans for advancing the country s development (NSDP 2009). The political stability that began in Cambodia only in the early 1990s gave youth the opportunity to participate in the social, political and economic spheres of national development. But the traditional values and hierarchical nature of Cambodian society, which demands respect for elders and authorities and limits possibilities for young people to articulate their views, has contributed to what has manifested, until June 2011 at least, as a general lack of recognition of youth needs and perspectives in the Government s policies and programmes (Yong 2005). The UN Situation Analysis of Youth in Cambodia (2009) stated that youth voices in rural Cambodia are not well incorporated into local development planning. While young people take part in economic activities that benefit their households and communities, the extent to which their voices are heard and incorporated in decision-making and development processes is very limited. Because local leaders do not consult youth on development issues since their views are not appreciated youth concerns are not adequately represented and reflected in village, district or provincial development priorities and budgets (UN2009). In surveys conducted for the UN 2009 report, youths expressed confidence in their ability to contribute positively to development processes. However, they face major hurdles related to the idea that participation and leadership should come with age, knowledge and experience. The traditional values of social deference to elders leads to the creation of a knowledge hierarchy where youths are expected to listen to their elders, who know better, thus encouraging passivity from youths. The tendency to listen to youth and address their needs tends to be (1) limited to specific issues (such as violence and drug use) and only when they emerge as local concerns to elders. Or they tend to be (2) one-time interventions that respond to an immediate visible problem (UN2009). Youth in Cambodia, like youth everywhere, want to play an active role in shaping their society. According to the World Youth Report 2007, providing young people a chance to take part in decision-making helps shape their own development, preparing them for a role in enhancing and strengthening their societies, and subsequently creating a better environment for youth participation. A peaceful, prosperous and equitable future for Cambodia depends on stimulating and harnessing the creative energy of the young by providing and supporting diverse opportunities for civic engagement. Civic engagement refers to activities that engage youth in affecting policy and taking action on issues in their community. It can be an individual or collective and includes efforts to directly address an issue, work with others in a community to solve a problem or interact with the institutions of representative democracy (PACT 2008). Civic engagement does not occur naturally, it must be fostered. Cambodia s public institutions however are still too weak and therefore unable to promote civic engagement effectively. Cambodian schools are not able to adequately prepare students academically and even less so civically. While civic material has been introduced into the public curricula, major changes in pedagogical approach are needed for schools to engage students in practical civic activities, and to involve parents and the entire community in their efforts (PACT 2008). Youth could benefit from such activities if there was strong support from the community, and engagement in community-level service may serve as a base for encouraging youth participation 75

80 in decision-making and policy about community-level issues. The PACT Youth Force for Change report argues that there is a widespread lack of community services for youth, and that parents and village leaders often view opportunities for team sports and other activities as a waste of time and scarce resources. The lack of support and encouragement from parents and communities for youth civic engagement also partly explains the absence of youth needs and perspectives in government policies and programmes (PACT 2008). While all young people in Cambodia should be introduced to the concepts surrounding civic engagement, their ability to participate will be limited by the demands made upon them by their family. Many older relatives are concerned about youths participating in civic activities out of fear that they are too political and therefore dangerous (KYA 2008). The attitudes and beliefs of elders and community leaders need to change to incorporate an understanding of the value of greater youth participation in social and civic affairs. Advancing the youth civic engagement agenda implies giving credence to the voice of youth. It means treating youth with consideration and respect as responsible individuals, while at the same time protecting them from the vulnerabilities that affect all young people in the 21st Century. But given the weakness of the educational system, gaps in inter-generational communication, and increased exposure to the media, the need for youth civic engagement programs appears to be increasing in urgency. Cambodia s youth have a right to participate in the political life of their country. But after decades of civil war and political violence, Cambodia is still struggling to build effective democratic institutions. Financial interests have yet to be decoupled from political affiliation, and because the stakes are so high, the Cambodian political landscape is fraught with tension. In such a context, political activism is perceived as threatening to those in office and they in turn inspire fear in potential activists. Additionally, the Government does not allow political discussions and meetings in schools, because they are seen as neutral areas in which politics has no place. This poses a constraint on young people gaining a critical political orientation or developing informed opinions (Yong 2005). The tense nature of Cambodian politics, the existing governance structures and the overbearing formality of the administrative culture combine to act as a disincentive for youth civic and political engagement. The election monitoring organization COMFREL has stated that youth political participation remains very low and that Cambodian students with university-level education do not pay much attention to voting (COMFREL 2008). Recent youth surveys have revealed that the perception of the absence of the rule of law and the complete dominance by one political party has led to youth apathy towards electoral processes. 53 percent of youth aged 21 years or above did not vote in the 2007 elections for representatives to the Commune Councils, despite this being the lowest level of local government and therefore much closer to the day-today issues which affect the lives of most of the population (UNDP / BBC World Service Trust 2010). There are emerging possibilities that could open new opportunities for youth to participate meaningfully in social and political development processes. The Royal Government s current decentralization and de-concentration effort, could present youth with a better chance to become involved in local development processes. The RGC has stated that the decentralization and de-concentration programme has two strategic goals: firstly to strengthen and expand local democracy and secondly to promote local development and to reduce poverty. The reform process will be based on the principles of: 76

81 Democratic representation: the reforms will strengthen the roles of councils at provincial/municipal, district/khan and commune/sangkat administrations by expanding their powers, duties, responsibilities and resources. Participation of the people: the reforms will introduce systems and procedures as ensure that people, especially women, vulnerable groups and indigenous minorities can participate in decision-making at provincial/municipal, district/khan and commune/sangkat levels. Public sector accountability: reforms will strengthen accountability at all levels of administration and facilitate citizens' oversight of the administrative and financial affairs of those administrations. Focusing on poverty reduction: the reforms will strengthen local capacity in using resources to support poverty reduction activities, especially vulnerable groups, indigenous minorities and women and children in order to achieve the Millennium Development Goals of Cambodia. The National Committee for Subnational Democratic Development has stated that the decentralization and de-concentration reform programme is the most ambitious and important change in Cambodia governance since the 1993 Constitution was enacted (NCDD 2005). Youth understandings of principle of democracy, governance, human rights and civic engagement In order to take advantage of these emerging opportunities, youth will need to know about political institutions and processes, and to have a rudimentary understanding of the concepts of democracy, governance, human rights and civic engagement. A survey of two thousand youth across five regions (UNDP / BBC World Service Trust 2010) revealed that awareness and knowledge of democratic concepts was mixed. Many youth had heard of human rights, democracy and civic engagement but did not know how to define them, or had varied interpretations. While nearly three-quarters of the survey respondents said they had heard of democracy, they could not say what democracy means to them. Among those who did say what it means to them, neither elections nor voting were mentioned. Nearly all supported the statement All villagers should vote for the village chief and two-thirds agreed that District government should be elected by all citizens However, the response to the idea that The government should include representatives from all major regions and ethnic groups in the country was more mixed with only half agreeing. Three-quarters supported the statement All political parties should appear equally on TV and radio and even more agreed that People should have the rights to know about the names of political candidates. One third agreed that Voters should select individuals, not parties on the ballot, and another third disagreed. When those who had heard of human rights were asked what the term meant, one fourth of them did not know. Civic engagement was less known. The two-thirds of young people who had heard the term gave a range of definitions about some type of response to problems. A third of those who had heard of it could not define it. Awareness of the institutions of democracy was also mixed. Young people who had heard of the institutions knew more about courts and commune councils than about parliament. The term Courts was universally known and the vast majority knew that courts provide judgment for people and provide justice. Commune councils were widely familiar but what they do was less clear to respondents: 92% of youth had heard of commune councils. However, nearly a third of those who were aware of commune councils did not know what they do. Of the three institutions, parliament was the least familiar to youth, with just three quarters having heard of 77

82 Parliament, and two-thirds of these people not knowing what parliament does. The influence of corruption on youth After decades of civil war and political violence, it is a sad truth that corruption has pervaded almost every sector of Cambodian public life, with a system of patronage well entrenched in society. In 2011, Cambodia ranked 164 th out of 182 nations (i.e in bottom 10%) in Transparency International s Corruption Perceptions Index. The World Bank s Worldwide Governance Indicators confirm this picture of widespread and endemic corruption, with Cambodia performing extremely poorly on indicators of voice and accountability, government effectiveness, regulatory quality and control of corruption. Inefficient government structures, unregulated bureaucracy, red tape and an opaque regulatory environment offer many opportunities of bribery and extortion. According to the Transparency International s 2007 Global Corruption Barometer, 72 percent of the respondents reported paying a bribe to obtain services. Citizens routinely have to make informal payments to access public services such as medical care, school grades, court verdicts, alleged traffic violations and birth and marriage certificates. Civil servants are underpaid, with salaries typically less than 20 percent of the living wage, thus making corruption a vital survival strategy. Law enforcement agencies are perceived as the most corrupt and inefficient sectors, lacking the independence, resources and capacity to effectively investigate and prosecute corruption cases. Weak systems of checks and balance, ineffective accountability mechanisms and scarce opportunities for public participation further contribute to the deteriorating situation (Transparency International 2007). The nature of corruption has been so pervasive for so long that young people can be forgiven for thinking that this behavior is a normal way of life in Cambodia. Such beliefs will undermine the ability of youth to fulfill their potential as the future of Cambodia. If the currents levels of corruption persist then the future for Cambodia can only be bleak. Youth have an opportunity to be a force for a better, more equitable and more sustainable future for Cambodia. The challenges are immense but the choices are clear. Young people can maintain the status quo and be passengers on the journey into Cambodia s future or, with leadership and encouragement, they can pioneer actions to change the mindsets and behaviours of the next generation, and put a stop to the parasitic culture of corruption which continues to fester and spread. The first step towards a better future for the governance of Cambodia is a higher level of youth awareness and knowledge about the principles of good governance. In the UNDP / BBC World Service Trust survey (2010) only one-fourth of the youth respondents were aware of the term transparency and 10% were aware of the term accountability. Though there is a lack of vocabulary to discuss transparency, there is an understanding of transparency in action. The majority of respondents agree that there must be transparency with respect to public expenditure and that appointment to government jobs must be merit-based. Despite the low level of awareness and understanding of the term Accountability there is a considerably high level of understanding of principles and mechanisms related to it. More than two-thirds of youth believe that citizens can raise ideas, speak without fear and can debate with their leaders. An even higher percentage believes that the commune council should respond to people in the commune. This is a strong foundation from which the goals of the RCG s decentralization and de-colonisation programme can be successfully built. The emerging role of social media among may provide an opportunity for youth to mobilize action towards better participation and higher standards of democratic governance. Media offers a platform for young people to interact with the wider society. It can be an effective channel 78

83 through which to deliver civic education in a more entertaining and informal way, and to model all kinds of participation to inspire a diverse and dynamic youth population across Cambodia. Recommendation: Create an enabling environment for full participation by young people within local communities; Promote formal mechanisms for effective participation by youth with civil society; Promote youth representatives at national, sub-national, and regional committees or councils, and ensure youth integration in the decentralization and de-concentration process; Promote participation, expression, and decision making by young people in the education sector; and Mobilize support for youth voices in policy and legislation development processes that affect youth. 79

84 9. PEOPLE WITH DISABILITY UNIVERSAL PERIODIC REVIEW (UPR 18 th Session) A Stakeholders report prepared by Disabled People Organizations (DPOs) in Cambodia Coordinated by: Cambodian Disabled People s Organization (CDPO) List of Organizations Participated in Developing this Report 1. Association of the Blind in Cambodia (ABC) 2. Capacity Building of People with Disability in the Community Organization (CABDICO) 3. Cambodian Disabled Independent Living Organization (CDILO) 4. Cambodian Development Mission for Disability (CDMD) 5. International Committee of the Order of Malta for Leprosy Relief (CIOMAL) 6. Cambodia Trust (CT) 7. Deaf Development Program (DDP) 8. Komar Pikar Foundation (KPF) 9. Marist Solidarity Cambodia (MSC) 10. National Centre of Disabled Persons (NCDP) 11. Parents Association for Children with Intellectual Disabilities (PACHID) 12. Battambang Provincial Disabled People s Organization 13. Svay Rieng Provincial of Women with Disability Forum 14. Takeo Provincial Women with Disability Forum 15. Kampong Speu Provincial Disabled People s Organization 16. Kampot Provincial Women and Children with Disability Forum 17. Kampong Cham Provincial Disabled People s Organization 18. ROSE 19. Research and Development (ReaD) 20. Cambodian Disabled People s Organization (CDPO) Contact Person: Organisation: Address: Ngin Saorath Cambodian Disabled People s Organization Wat Than, Norodom Blvd., Tonle Basac, Khan Chamkar Morn Phnom Penh, Cambodia director@cdpo.org Tel. no: +855 (23) Website: 80

85 I. Introduction 1. Twenty DPOs and NGOs representing different disabilities participated in the two day workshop organised by Disabled People s International (DPI), Cambodia with the support of DPI and International Disability Alliance (IDA) on 16th and 17th May 2013 at the Cambodian Disabled People s Organisation (CDPO) Phnom Penh. Among the participants six were women. Several issues relating to disability were discussed during the two days. The participants identified five major issues after in-depth discussions that we want to highlight and have elaborated those in this report along with some recommendations. II. Overview 2. Cambodia is often cited as a country with a high number of persons with disabilities. Estimates of the number of persons with disabilities in Cambodia vary significantly from one source to another depending on the definitions used. In 1997, the Asian Development Bank (ADB) reported that 9.8% of Cambodians are persons with disability. In 2004, the National Institute of Statistic (NIS) found that the percentage of persons with disabilities is 4% of the total population (Cambodia Socio-Economic Survey (CSES), 2004). Surprisingly, in the most recent release of the General Population Census of Cambodia 2008, the estimation of the percentage of the total population to be persons with disabilities was only 1.44% of the total population (NIS-MoP, 2009) According to statistics from the Cambodian government, almost a fifth of the people with disabilities in Cambodia have amputations, mainly due to the land mines. 11% have visual impairments, and 5% are deaf or hard of hearing. One fifth of the people with disabilities in Cambodia are children. The vast majority of disabled Cambodians live in rural areas It is established that persons with disabilities generally belong to the poorest among the poor with very limited access to resources, basic social services, education, vocational training and employment. In addition, they are often seen as a hopeless, lonely, isolated group without sufficient affection from families, relatives and friends. People with disabilities are among the most vulnerable groups in Cambodian society. ADB estimated in 2007 that 28.3 per cent of the population is surviving on less than USD 1.25 a day, and 30.1 per cent is living below the national poverty line Cambodian Constitution in Article 74 obliges the State to assist the disabled and the families of combatants who sacrificed their lives for the nation. 4 Cambodia signed the Convention on the Rights of Persons with Disabilities (CRPD) in 2007 and ratified it in December In 2009, the Cambodian government adopted Law on the Protection and the Promotion of the Rights of Persons with Disabilities. It is a progressive law including non-discrimination in employment and a quota, accessibility, inclusive education, right to vote and so on. Ratification of the CRPD and adoption of disability rights law are certainly significant milestones for protecting and promoting the rights of persons with disabilities in Cambodia. The challenges, however, lie in the ineffective implementation of these disability rights instruments Cambodian Disabled People s Organization (2010). Report on the Preparedness of Disability Action Council s Member Organization Toward Employment of Persons with Disabilities. Phnom Penh: CDPO. Sida (2012). Disability Rights in Cambodia. Phnom Penh: Sida. Ibid. Royal Government of Cambodia (1993). Constitution of the Kingdom of Cambodia. Phnom Penh: RGC. 81

86 III. Five Key Concerns Based on the results of workshop, some of the key concerns of people with disabilities are: A. Laws, Policies and Action Plans 6. Although the Law on the Protection and Promotion of the Rights of Persons with Disabilities was adopted in 2009 after Cambodia signed the Convention on the Right of Persons with disabilities, certain provisions of the law emphasize the impairment of persons with disabilities 5 rather than the barriers that hinder their full and effective participation in society on an equal basis with others Many provisions of CRPD were not integrated into this law. Only some rights have been stated in Cambodian disability law livelihood, physical and mental rehabilitation, health care and prevention, public accessibility, education, employment and vocational training, incentive, and election. 7 The law does not address the right of vulnerable groups such as women and children with disabilities and other important rights including access to justice, freedom from exploitation, violence and abuse, freedom of expression and opinion, and access to information, protection of persons with disabilities during situation of risk and humanitarian emergencies etc. enshrined in the CRPD Currently, there is no National Policy on Disaster Management. The National Committee for Disaster Management (NCDM) and the Ministry of Planning (MOP) established an inter-institutional task force to formulate a Strategic National Action Plan for Disaster Risk Reduction (SNAP). However, this Strategic Plan does not specify how to facilitate or provide assistance for persons with disabilities during natural disaster The implementation of the 2009 Disability Law is still not full and effective. Many enforcement mechanisms or implementation processes are not outlined in the law. Instead, some provisions state that the details of the implementation of the provisions will be specified in sub-decree, prakas or ministerial orders to be issued later by the competent and relevant ministries. The law requires the adoption of 5 Sub-decrees and 11 Prakases to be fully implemented. As of May 20, 2013, however, only 4 sub-decrees and 2 Prakases have been issued. 10. Other national policies such as National Strategic Plan and Commune Investment Plan include disability but do not earmark budget for the implementation. According to the National Strategic Plan (NSDP) ( ), the Ministry of Social Affairs, Veterans See, e.g., Law on Protection and Promotion on the Rights of Persons with Disabilities (LPPRPD) art. 4 (defining persons with disabilities as any persons who lack, lose, or damage any physical or mental functions, which result in a disturbance to their daily life... such as physical, visual, hearing, intellectual impairments, mental disorders and any other types of disabilities toward the insurmountable end of the scale ). See article 1 of the CRPD, which states that [p]ersons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others ). See, e.g., LPPRPD. See, e.g., CRPD art. 6, 7, 11, 13, 16, 21. See e.g. Strategic National Action Plan for Disaster Risk Reduction available at +Reduction. Last access May 21,

87 and Youth Rehabilitation (MoSVY) will be responsible for strengthening and expanding welfare and rehabilitation services for disabled people, but it does not provide details on how much of national budget will be allocated for the implementation. 11. Although disability legislation and policies were adopted, the dissemination of the information regarding the existence of those laws and policies to the law enforcement agencies, civil servants, the general public including persons with disabilities, specifically those living in remote area is still limited. As a result, many people in the country including persons with disabilities are not aware of the rights of persons with disabilities. Recommendations: 12. The Cambodian government should amend the existing disability law so as to ensure that in every provision of the law disability issues will be addressed from the human right perspective as enshrined in CRPD to ensure full and effective participation of persons with disabilities in all spheres of life. More provisions relating to other human rights of persons with disabilities as enshrined in CRPD should be added to ensure that CRPD is fully and effectively implemented in the country. 13. The Strategic National Action Plan for Disaster Risk Reduction developed by the government must include strategy for protecting persons with disabilities during situation of risks and humanitarian emergencies that take into account the vulnerability and needs of persons with disabilities in the relief efforts. 14. The government must ensure that all of its national policies and strategic plans address inclusion of persons with disabilities. Those policies should have an implementing and monitoring mechanism that specifically evaluates progress made in relation to disability and provide an adequate budget for the implement. 15. The government should closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations in developing laws, policies, Sub-decrees and Parkases concerning the rights of persons with disabilities. 16. The government must strengthen the dissemination of information relating to the existing laws and policies concerning the rights of persons with disabilities through media such as television, radio, newspaper, brochure, education and training at the community level. The government should also ensure that those laws and policies are available in accessible format for persons with disabilities in the form of Braille, large print, easy to read, and audio formats. B. Accessibility 17. Article 21 of the Cambodian disability law requires all public places be made accessible for persons with disabilities. Article 22 states that the organization for public accessibilities or the means of transportation for persons with disabilities shall be determined by an inter-ministerial Prakas by the Ministers in charge of Social Affairs and other 83

88 concerned ministries/institutions. However, as of May 2013, such Prakas has not been issued. 18. People with disabilities experience difficulties in accessing public service as most government offices and public buildings do not have ramps, accessible entrance, toilets and people who use wheelchairs are often carried up the stairs in order to access them. Most employers do not provide reasonable accommodation for employees with disabilities in the workplace. 19. The Ministry of Transportation does not have a policy or guidelines for accessible public transportation or for making streets accessible through the installation of curb cuts. Most streets do not have sidewalks. All public or private buses and taxis do not have the physical space needed to load or carry wheelchairs. The bus and traffic lights are not equipped with auditory signal. Therefore, people who use wheelchairs and those who have visual impairment have difficulties travelling alone. They often need assistance. 20. Access to information for persons with disabilities in Cambodia is still limited resulting in exclusion of persons with sensory disabilities. The use of Braille, sign language, and easy-to-read materials such as simplified text and pictures for those with intellectual and learning impairment is generally limited to education in specialized schools. The national library does not provide audio, large print or electronic versions of their materials. There has not been a national standardized of sign language in Cambodia. Although there are more than ten television channels operating in Cambodia, only two provide sign language during news broadcasting. Other education and entertainment programs on televisions do not provide sign language or closed captions. Recommendations: 21. The government should accelerate the development of Prakas including sufficient monitoring mechanisms concerning the accessibility standard for public building and transportation. The guidelines should take into consideration the universal design principles to ensure accessibility for all people. 22. The government must allocate a national budget for setting up a resource centre for sign language and Braille. The centre must increase the availability of reading and education materials in accessible formats for all persons with disabilities including intellectual and sensory disabilities. The government should also require state and private media to provide sign language and closed caption in their program and seek technical assistance to this end. C. Education 23. Article 30 of Cambodian Disability Law obligates private educational establishment to provide special discounts for school fees, study books and stationary for students with disabilities or military veterans with disabilities. The discount has to be determined by an inter-ministerial Prakas by the Ministers in charge of Social Affairs and Education. As of May 2013, such Prakas has not been issued. 84

89 24. In 2008, the Ministry of Education Youth and Sports (MoEYS) adopted a Policy on Education for Children with Disabilities but this policy focuses only on children with physical disabilities. It excludes children with intellectual and psycho-social disabilities. The roles and responsibilities of relevant stakeholders in implementing the policy are not clearly specified. Moreover, the policy does not mention a clear monitoring and evaluation mechanism and the budget allocated to implement this policy. 25. Although he inclusive education-training module has been developed and approved by the MoEYS, few teachers have so far been trained on how to assist children with disabilities. 10 The result of a survey on current situation of education for children with disabilities conducted by CDPO with support from Handicap International in 2010 shows that only a small percentage of MoEYS employees surveyed for the research have received training or have resources for teaching children with disabilities. There is a need for teachers who are trained to teach all children with disabilities including children with intellectual or physical disabilities At present, there is little support available for children with disabilities in mainstream public schools. Special schools for children with hearing and visual impairments do exist in Cambodia. The inclusion of children with visual, hearing, and other disabilities like intellectual disability and Autism in the mainstream schools has not been generally recognized. Special schools are not part of the public schools system under the management of the MoEYS. The non-governmental schools only have the capacity to provide education services to a small population of children with disabilities in Cambodia Only a very small number of children with disabilities have access to Braille or Sign Language education services. Few schools were viewed by students as being child friendly. Many students with disabilities cannot attend public schools because only a few schools have ramps, accessible toilets, and handrails Vocational training options for persons with disabilities, especially for the blind and those with intellectual disabilities such as autism are limited. While all the vocational training centers are situated in Phnom Penh and other cities but the majority of disabled people in Cambodia live in the rural area. Because of poor infrastructure and limited and expensive transportation service, many people with disabilities, especially women with disabilities in rural areas do not have access to this training opportunity. Recommendations: 29. The government should accelerate the development of Prakas concerning the discount in education for students with disabilities and ensure that quality education and lifelong learning are available for all persons with disabilities. 30. The government should amend policy on education for children with disabilities to include provisions for all students with disabilities including those with intellectual UNICEF, Education. Phnom Penh, Cambodia. Cambodian Disabled People s Organization (2010). Report on Current Situation of Education for Children with Disabilities. Phnom Penh: CDPO. Ibid. Ibid. 85

90 and sensory impairments. A department should be set up to monitor the implementation of the policy. Provisions relating to operations and budget allocation of this institution should be added to the policy. 31. The government should take measure to ensure that teachers are provided with training on inclusive education, sign language, and how to facilitate the education of students with all types of disabilities. All learning materials should be available in formats that are accessible for students with visual, hearing, intellectual impairment and learning difficulties. The government should ensure that resources are devoted to develop its sign language education and interpretation and ensure the availability of these to deaf and deafblind persons. 32. Through the audit of all schools, the Ministry of Education should work closely with its provincial network to ensure that facilities such as ramps are put in place where schools are not accessible and to establish a timeline with goals and indicators for increasing accessibility of all schools. D. Political Participation 33. The purpose of the CRPD is to protect all rights of all persons with disabilities including those with mental and intellectual impairments. Discrimination on the basis of disability as defined in article 2 means any distinction, exclusion or restriction on the basis of disability which ha the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms. Article 29 of the convention protects the rights to political participation of persons with disabilities. Moreover, Human Rights Council resolution A/HRC/RES/19/11 prohibits any exclusion or restriction on the basis of disability in the right to participation in political and public life. Article 44 of Cambodian Disability Law ensures the equal rights for all persons with disabilities to vote or be a candidate for election. Moreover, Article 45 prohibits discrimination and stigmatization against persons with disabilities that run for election. However, Article 34 and 50 of the Amended Law on Election of Members of the National Assembly (LEMNA) of 2007 prohibits insane persons or persons under guardianship, who are certified as such by a competent institution to stand as candidate in the election of the National Assembly and to register. 14 Similarly, the Amended Law on Elections of Commune Councils of 2006 prohibits persons that are certified by a competent institution as being insane or under a guardianship to register or vote in the Commune Councils Election. 15 The restriction based on disability stipulated in these election laws place persons with intellectual or psycho-social disabilities at a high risk of being excluded from these political processes. 34. Voter registration is generally held at commune council offices or other places in the community such as schools, pagodas, or houses. These places are most often inaccessible sometimes even located on the second floor and these buildings without ramps Royal Government of Cambodia. (2007). Amended Law on Elections of Member the National Assembly (LEMNA). Phnom Penh: RGC. Royal Government of Cambodia. (2006). Amended Law on Elections of Commune Councils. Phnom Penh: RGC. General Election Network for Disability Access (AGENDA) (2013). Election Access for Persons with Disabilities in Cambodia. Phnom Penh: AGENDA. 86

91 35. Currently, the voter lists do not have a section recording the disability of voters. It is the same for candidate list of political parties. As a result, there is no statistics available regarding the number of voters and candidates with disabilities. 36. Polling stations are usually not physically accessible for persons with disabilities. In particular, those using wheelchairs and persons with visual disabilities experience the greatest difficulties in accessing polling stations. 17 Of the polling sites observed by Action Disability Development in 2003 General Election, 58% were accessible for wheelchair users. Approximately 37% had steps that prevented people with disabilities from reaching the polling site, and only 7.5% had an entrance ramp. 18 Moreover, most of voting booths and ballot boxes are not accessible to wheelchair users. 37. The Braille ballot templates for persons with visual impairments are available at the polling station since the 2008 General Election. However, election officials are not taught how to use those templates. Many persons with visual impairment are not aware of the availability of Braille ballot templates due to the lack of information dissemination and voter education Most of video spots relating to elections that are broadcast on television channels do not provide sign language or subtitle. Political parties do not provide sign language interpretation of their manifesto speeches during the campaign. As a result, many deaf people do not have access to election information. Recommendations: 39. The government should amend its Election Laws that discriminate against persons with intellectual and psycho-social disabilities so as to comply with the CRPD, Human Rights Council Resolution A/HRC/RES/19/11, and the Cambodian Disability Law. 40. The government and the National Election Committee should ensure that all voter registration offices, polling stations, information regarding party manifestos and their speeches are accessible to all persons with disabilities. 41. The voter list should have a section to record disability of voters so as to collect data of voters with disabilities. However, the data collection should be made on a voluntary basis taking into consideration the right to privacy of voters with disabilities. The statistics will make facilitation of voters with disabilities easier. 42. The National Election Committee (NEC) should provide trainings to election officers on how to use Braille ballot template. Information about availability of these templates should be disseminated widely across the country. The NEC should also ensure that persons with disabilities, including those with visual impairment can serve on the committee on the same basis as other persons Ibid. International Disability Rights Monitor (2005). Regional Report of Asia. General Election Network for Disability Access (AGENDA) (2013). Election Access for Persons with Disabilities in Cambodia. Phnom Penh, AGENDA. 87

92 E. Access to Public Health and Rehabilitation Services 43. In 2008, the Ministry of Health adopted a Health Strategic Plan Although it is a comprehensive document, there is no provision detailing health care for persons with disabilities According to Sub-decree on pension policy for poor persons with disabilities in the community, persons with severe disabilities and those who have Poor ID card are eligible for free healthcare and rehabilitation services as well as support for transportation. However, the Poor ID cards have not been issued to persons with disabilities who are eligible for this pension scheme. 45. There is a lack of heath infrastructure and human resource resulting in poor quality of health services throughout the country. Most of health centers are located in the city and provincial towns. People with disabilities need to travel long distances to receive treatment, which typically entails additional transportation costs making it very difficult for disabled people living in the rural areas to benefit from them. Even though heath centers are available, most of them are not accessible for wheelchair users. 46. Most healthcare providers such as doctors and nurses are inadequately trained on how to communicate, treat, and better serve patients with disabilities. As a result many persons with disabilities are denied access to healthcare services, especially deaf patients because of untrained medical staff. 47. Healthcare for persons with psycho-social disabilities remains problematic. There is limited number of professional healthcare providers. As of 2010, Cambodia had approximately thirty-five trained psychiatrists and forty-five trained psychiatric nurses for a population of close to fifteen million. While 297 primary care physicians and 270 primary care nurses have also taken basic courses in mental health care, it is estimated that only a small percentage of them actually provide some degree of mental health care. The public mental health system does not allocate any positions for psychologists or social workers, which largely reflects its strong biomedical approach to mental health. 21 Recommendations: 48. The government should adopt policy concerning healthcare for persons with disabilities. It should allocate national budget for the implementation of the policy. 49. The government should build more healthcare centers in remote area and encourage professional and doctors to work in those areas through the provision of incentives. 50. The government should take measure to ensure that healthcare providers including doctors and nurses are provided with training on how to communicate and better serve patients with disabilities. 51. The government should take measures to ensure that Poor ID cards are issued to eligible persons with disabilities Ministry of Health (2008). Health Strategic Plan Leitner Center for International Law and Justice. Mental Health and Human Rights in Cambodia. 88

93 10. LAND, HOUSING RIGHTS AND EVICTION ISSUE Joint NGO Submission to the 2 nd Cycle of the Universal Periodic Review of Cambodia June 2013; focus on Land and Housing Rights Facilitated by Housing Rights Task Force This joint submission has been prepared in consultation with a number of key Cambodian NGOs. 1 It has been endorsed, in whole or part, by the 22 organizations listed in Attachment A. Having read and considered the Royal Government of Cambodia s (RGC) Mid-term Report of Cambodia on the Implementation of the 91-point Recommendations of the 1st Cylce, NGOs comments are as following: 1. Legislative framework and reforms While the adoption of several laws and policies on strengthening land tenure is appreciated, these remain fruitless where the RGC fails to abide by and apply these regulations consistently. The RGC should take measures to fully implement existing laws to register and protect land tenure rights and to ensure the compliance of private sector involved. Since the last UPR in 2009, the number of evictions has increased, leading to the impoverishment of thousands of communities in Cambodia. This situation certainly raises questions about the RGC s commitment to international human rights treaties and its own 2001 Land Law. The Land Law, which has the potential to provide protection for citizens land rights and is regarded as a positive legal instrument by most independent actors, is not applied accurately or consistently. This is especially true regarding the granting of economic land concessions and other concessions to land without first determining the ownership of the land. Evictions are not considered a last resort option and safeguard procedures to prevent violence and hardship described in the Land Law are often not acknowledged. In most cases, no consultations take place with affected communities, no social and environmental impact assessments (required by other laws) are conducted and claims of ownership and rights to fair and just compensation are often summarily dismissed. When the RGC makes state land available to for private development, the RGS should ensure the implementation of laws to strengthen land tenure protections and should allow forced eviction for large private developments only as a last resort. In the event of an eviction of government land made available for private developers, the government should ensure that developers provide appropriate financial assistance and adequate housing including accessible infrastructure development for people displaced by the development. The RGC should adopt an Evictions Act to ensure due process in carrying out evictions, and should develop a National Housing Policy that addresses the problems of homelessness, particularly in urban areas. One of the most recognized cases of forced evictions involves the Boeung Kak Lake community, in which the RGC and Shukaku Inc. displaced thousands of residents from 2008 onwards. The World Bank undertook investigation of the human rights abuses claimed by community leaders 1 This submission to the Universal Periodic Review of Cambodia has been prepared by a coalition of nongovernment organizations (NGOs) from across Cambodia. The principal authors of this submission are the Housing Rights Taskforce (HRTF), World Vision Cambodia (WVC), Urban Poor Women Development (UPWD), Development Partners in Action (DPA), Equitable Cambodia and the NGO Forum on Cambodia (NGOF). 89

94 and civil society in a joint advocacy campaign, and froze all World Bank loans to Cambodia as a result of its findings. As a result, the RGC issued a sub-decree to grant hectares to more than 600 residents. Yet the delineation of these hectares is not clear and 61 families were excluded from this text. The RGC should clarify the sub -decree to help the residents properly identify their land and provide an adequate solution for the excluded families. In 2010, the Parliament enacted the Law on Expropriation, to implement the state s Constitutional power to take land and other immovable properties for public development and infrastructure purposes, where doing so serves a general public interest or national interest need., and where fair and just compensation is paid in advance of the taking. While this law does provide basic procedures that must be followed and protections and rights of affected persons to complain about processes as well as levels of compensation, there are many weaknesses in the law. These weaknesses could lead to serious problems in implementation, particularly in determining whether the taking is in the public interest or national interest and whether the compensation is fair and just. The Law on Expropriation, like the Land Law and the Constitution, only extends compensation protections to legal owners and other persons holding rights to the land recognized by law. Often the most vulnerable people affected by development projects do not have legal rights to the land, because authorities consider that the land is as State Public Property under the Land Law and relevant regulations. However, very little work has been done to identify and register state public and private land. A sub decree on State Land Management, promulgated in 2005, has the potential of identifying vacant state public and private land and providing information about what land is classified as State Public Land. However, this sub decree has not been implemented on a broad scale, and affected people have few practical ways to challenge the public state land classification and the denial of compensation for taking the land. While often viewed as professional squatters, many people evicted from state land are in fact the most vulnerable homeless and landless people in the country and risk becoming subject to serial evictions. The RGC should carry out a mapping of the housing needs of the country and disseminate information about what land is classified State Public Property, with the view of addressing the increasing needs of the most vulnerable people, particularly those who are at risk of serial eviction. In 2010, the RGC adopted a circular concerning temporary settlement on state land, as opposed to permanent ownership or possession with the intent of ownership, which is illegal. The circular is meant to protect illegal settlers by giving them temporary occupation rights and compensation entitlements. While the adoption of the circular is welcomed, the RGC has failed to implement it in practice on a larger scale. The RGC should implement Circular Nº. 3 on Resolution on Temporary Settlement on Land, which has been illegally occupied in the capital, municipal and urban areas. Consultation with Civil Society on draft legal framework is not always conducted and the timeframe given to comment on is insufficient. The RGC should provide sufficient time to Civil Society to analyze any draft and provide comments to allow meaningful consultation. 2. Systematic Land Registration While the RGC is implementing systematic land registration in 15 of Cambodia s 24 provinces and the capital, especially urban areas inhabited by the poor have been excluded from being titled. Areas have been excised from adjudication areas prior to or during the process of survey and demarcation, and land parcels have been left unregistered due to having unclear status. 2 As a consequence, residents of these areas are prone to eviction. The RGC should avoid further 2 See also Grimsditch et al. (2012). Access to Land Title in Cambodia. A Study of Systematic land Registration in three Cambodian Provinces and the Capital, The NGO Forum on Cambodia 90

95 exclusions: If it is found during the adjudication process that there are overlaps with state land or lands involving dispute, these should be dealt with according to the existing legal process. The decision to grant or withhold land titles should be based on the legal status of the occupant, i.e. whether or not they meet the legal requirements of possession as set out in the Land Law. The RGC should conduct research into full extent of exclusions: in order to assess how many areas have been excluded from SLR across the country. A database/matrix of all excluded areas should be developed and an analysis conducted of why exclusions occurred, at what stage in the process this happened, and on what grounds. The results of such a study should be made public. The RGC should develop an operational plan for dealing with exclusions: A plan could be put in place to return at the soonest possible time to conduct adjudication in those areas where exclusions were not legally justified. In order to ensure transparency and maintain public confidence in the system, this process should be open to scrutiny and efforts should be made to ensure that excluded areas are not once again omitted from SLR without clear legal justifications. The RGC should clarify under what circumstances the term unclear status can be applied. In cases where land is claimed both by a private individual and by the state or a public authority it should be clarified whether the land should be recorded as being of unclear status or disputed. The RGC should increase transparency in the selection of adjudication areas: The process of identifying adjudication areas should be clarified and made more transparent. If an area is deemed not to be suitable for adjudication, this should be recorded and the reason made public in order to ensure that areas are not passed over without good reason. 3. Indigenous Peoples Rights 1. Communal Land Registration The Land Law 2001 provides for communal land registration of indigenous community properties. Studies and identification of indigenous people across the country has not been fully completed yet. There is a lack of awareness-raising on the process of self-identification and registration of collective land, in particular, with indigenous communities in areas where selfidentification has not been conducted. Participation and awareness from local authorities on identification of indigenous people is limited. The process of provision of indigenous identity by the Royal Government is slow. The priority of collective land registration is determined after registration of private land. The overall process of communal land registration is slow. The procedures for communal land registration are complicated and require good cooperation amongst all involved Ministries such as MoI, MoRD and MLMUPC. However, up to June 2013, 8 indigenous communities have received a communal land title. Due to the lengthy process in communal land registration, more measures are required to protect indigenous lands prior to registration. In this regard, we welcome the issuance of the inter-ministerial Circular Nº 001-Nº 004, 31 May 2011 banning land transactions on indigenous lands as an interim protection measure. However the circular excludes areas that the Royal Government has agreed in principle for investment or development prior to [these] measures com[ing] into effect. Investment or development in these areas potentially negatively affects indigenous peoples rights and livelihoods. In addition, the circular aims at interim protection only of indigenous communities who have already requested collective titling. Interim protection for indigenous land can only be achieved by interim protection of indigenous peoples land for all communities that are predominantly indigenous, regardless of whether or not they are registered. Applying interim protection only to registered communities disregards international standards of respect for selfdetermination, which is a cornerstone of the UN International Declaration on the Rights of 91

96 Indigenous Peoples. Based on the Directive 01 3, the RGC also implemented a new titling scheme to grant individual land titles to households on 1.8 million ha, living in ELC and forest concession areas as well as on state public land. The new titling scheme has been implemented until June 2013 and it is expected that it will resume after the general election on July 28, It has also been implemented in areas inhabited by indigenous people (IPs), and reports from the ground 4 reveal the new titling schemes negative impacts to indigenous peoples. Villagers reported of being pressured to accept private titles and of being forced to decide whether to accept them without adequate time for consideration, thus creating division within communities. Villagers were reportedly told that if they do not accept private titles they will receive nothing at all, and authorities declared that in such case any disputes would not be resolved for villagers. Overall, the new titling scheme appears to undermine indigenous communities right to communal land titles. The RGCs Instruction 15 5 states that he volunteers should demarcate the IPs communal land and that only the regulations of communal land titling should apply to IPs who successfully achieved -or are in the process of doing so- the registration as a legal entity with the Ministry of Interior (MoI), which is a prerequisite for receiving a communal land title. However, Instruction Nº 15 had been overruled by Instruction Nº 20 which postponed communal land titling. Furthermore, it does not include IP communities who have not entered the CLT process yet. The RGC should establish a General Secretariat as one-window service body both provincial and national level to expedite collective land registration for indigenous communities in full respect off indigenous tradition and culture with regard to customary land use, concept to land and territory, sustainability of the right to use land and natural resources, and to maintain indigenous people s traditions and customs. The RGC should enforce existing provisions to protect indigenous peoples land in the interim. The Royal Government needs to ensure that the implementation officials, youth, and local authorities of Directive 01 does not jeopardize the right of IP communities to receive a communal land title, regardless of having achieved any prerequisite steps in the Communal land titling process. 2. Livelihoods, Tradition and Culture Indigenous people are especially vulnerable to the impacts of infrastructure developments, land and mining concessions and hydropower dam construction. The Lower Sesan 2 Hydropower Dam Development Project has been considered by the government as a project that can generate a lot of power among other hydropower dams in Cambodia. At the same time, it is expected that the project, if carried out, yields negative impact the livelihoods, occupations, farmland, crops, properties, education, religion, health tradition, of the people in the project area, especially indigenous people. Village infrastructures and natural resources will be destroyed. 6 The RGC should consult process with indigenous peoples based on the principles of Free, Prior and Informed Consent before implementing any infrastructure or development project on indigenous peoples lands. The RGC needs to ensure that Environmental and Social Impact 3 Directive 01 on Measure to Strengthen and Foster Effectiveness of ELC Management, dated 07 May 2012 (Khmer version), available at 4 Rabe, Alison (2013). Directive 01BB in Ratanakiri Province, Cambodia, Issues and impacts of private land titling in indigenous communities. 5 Instruction Nº 15 on the implementation of the Royal Government s Directive Nº. 01 BorBor, dated 07 May 2012 on the strengthening and increasing the effective management of Economic land concession in areas of indigenous communities; evergreen forest, semi-evergreen forest, dense forest; and in areas of national defense bases and historical and cultural heritage sites, Supreme Council of State Reform, Council for Land Policy, Phnom Penh, 04 July 2012 (unofficial UNOCHCR translation) 6 The NGO Forum on Cambodia (2012), Lower Sesan 2 Hydropower Dam: Current Livelihoods of Local Communities (A Baseline Study). Available at 92

97 Assessments are conducted based on international standards prior implementing development projects. The monitoring of land transactions in areas inhabited by indigenous peoples needs to be enhanced, and a moratorium on land sales in those areas should be installed. The RGC should adopt the Law on Access to Information in order to enhance participation and the right to decision making on national development. The RGC should respect and recognize the traditions and culture which assures indigenous people s rights and maintains their traditions and customs. The RGC should ratify the ILO convention 169. The RGC should protect, respect and fulfill the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 4. Forced Evictions: Forced evictions are a longstanding and serious problem in Cambodia, occurring in both in rural and urban areas. This problem is exacerbated by the RGC s failure to respect both international and national law on forced evictions. Opaque long-term land leases and economic land concessions to private companies, in combination with the RGC s taking of land for large-scale, development project, have resulted in an increasing number of forced evictions. In 2011 alone, at least 60,000 people were evicted from 127 communities. The RGC seems to favour private companies over its citizens, leaving Cambodian people without adequate legal protection. For example, in January 2012, 300 homes were demolished by private security guards and police in the Borei Keila community contrary to a 2004 agreement with the Phan Imex Company to develop ten buildings for the affected residents. These evictees were not even given an opportunity to save their belongings. Unfortunately, the experience of the Borei Keila community does not represent an isolated incident, but is rather reflective of the eviction experience of many communities across Cambodia. Especially problematic is the RGC s tendency to justify forced evictions in terms of a public interest in using regional and international aid for infrastructure development. Airport expansion and upgrading, 7 dam construction, and railway rehabilitation 8 and construction 9 are just some of the infrastructure projects endorsed by the RGC in the name of development, which adversely affect Cambodia s poor.the RGC must protect its citizens from forced evictions until mechanisms are in place, which ensure that the companies and development organizations involved in infrastructure projects respect citizens proprietary claims and human rights. The RGC must ensure that forced evictions are no longer practiced and that the Companies respects the citizens land rights. 7 Société Concessionnaire de l Aéroport (SCA), a joint venture between Vinci Airports and Muhibbah Masteron Cambodia is implementing a mass redevelopment of Phnom Penh International Airport, financed by the World Bank Group s International Finance Corporation. Approximately 387 households living on the 6.3 hectares around the airport in the Thmor Korl, Prey Chisak and Kok Chambork villages have received eviction notices. 194 households of this total affected population filed a complaint with the SCA s Compliance Advisor Ombudsman mechanism, claiming possessory rights to the land, and demanding fair and just compensation should eviction be necessary. 8 The ADB and AusAID are working in partnership with the RGC to rehabilitate Cambodia s railway line. At least 4164 families live alongside the dilapidated tracks and over 1200 families will be relocated by the project s conclusion. Australia s Toll Holdings and Cambodia s Royal Group have been granted a 30-year concession to operate the refurbished railways. Affected households in the provinces of Sihanoukville, Phnom Penh, Battambang and Poipet have filed a complaint with the ADB s Compliance Review Panel (CRP) regarding the serious harms they have suffered, including impoverishment. 9 Cambodia s valuable iron-ore deposits in the northern district of Rovieng are slated for a USD 11.2 billion railway construction project by the Cambodia Iron & Steel Mining Industry Group and China Major Bridge Engineering, itself a subsidiary of the Chinese state-owned China Railway Group..The proposed north-south railway will stretch for almost 405 km, linking the planned steel works in Preah Vihear to a newly constructed sea port in Koh Kong on the southwest coast. Based on the human rights track record in Cambodia resulting from large-scale development projects, the RGC should release the full details of the project and promote open consultation with the thousands of potentially affected households. 93

98 Communities are often not fully aware of their rights; the eviction process or the compensation they should be awarded, in spite of the 2001 Land Law s guarantee of a fair market price upon eviction, only where eviction is necessary for the betterment of the public interest. The continuation of the use of forced eviction in Cambodia is a clear failure and disrespect of the commitment taken at the UPR session in 2009.The RGC should inform and educate the communities on their land rights. In May 2012, Prime Minister Hun Sen announced a moratorium on controversial economic land concessions (ELCs) (also called Directive 01) 10, and stated that those ELCs which do not comply with applicable procedures and contracts, by logging without developing the ELC, [ ] encroaching on lands of citizens or communities and thus contributing to human rights violations could result in the concession being cancelled. However, after the moratorium a number of additional ELCs have been granted by the RGC 11 and only from beginning of 2013 the granting of ELCs has seized. No public information is available on how many ELCs have been cancelled 12 and the effect of this order has not yet been seen, economic land concessions are still a root cause of forced evictions and land disputes in Cambodia. In 2011, 25.7% or 73 cases of ongoing recorded 284 land disputes were attributable to ELCs and 62.2% of all disputes have occurred over agricultural land. 13 Moreover there was no clear moratorium on evictions. The RGC should cease all forced evictions and introduce a moratorium on forced evictions in Cambodia until a transparent and accountable legal framework, and relevant policies are in place to ensure that evictions are conducted only in accordance with Cambodia s obligations under international human rights law. Ample evidence exists that ELCs do not benefit of poor and vulnerable people and the overall Cambodian population. Instead, ELCs are found to be a source of widespread, systematic human rights violations such as forced evictions and deprivation from right to adequate housing, access to land and right to food, contributing to environmental destruction. 14 The RGC should ensure that the moratorium is converted into a permanent ban of ELCs in Cambodia. 5. Resettlement: In case of relocation, HRTF finds that most relocation sites fail to meet the international standards regarding adequate housing and resettlement sites infrastructure development. Authorities often relocate evicted communities to remote areas (for example, Borei Keila evictees were relocated at 50 km from Phnom Penh), limiting access to employment opportunities, schools and health care facilities. In addition, relocation areas often fail to provide access to clean water supplies and electricity. The housing itself is typically substandard and does not amount to proper shelter. In relocation sites for evictees, the RGC should build basic electricity and water/sanitation infrastructure and provide public education, health and security services. Renowned international development consultant Michael Cernea gave the ADB recommendations on better resettlement strategies, which supports the 10 Directive 01 on Measure to Strengthen and Foster Effectiveness of ELC Management, dated 07 May 2012 (Khmer version), available at 11 According to ADHOC (ADHOC. (2013). A turning Point? Land, Housing and Natural Resources - Rights in Cambodia in 2012) 33 ELCs have been approved since the moratorium. Page 34, the royal gazette reports the granting of 15 new ELCs. 12 However, according to the royal gazette, 105 sub decrees were issued until the end of January 2013, excising land from ELCs, logging concessions, forest covered areas, protected and other areas 13 NGO Forum on Cambodia, Statistical Analyses of Land Disputes in Cambodia, 2011, Pg.18, 23 (forthcoming) 14 Surja P. Subedi, A human rights analysis of economic and other land concessions in Cambodia (2012), Report of the Special Rapporteur on the situation of human rights in Cambodia, A/HRC/21/63/Add.1, Rev. 1, pp

99 HRTF s opinion that current practices are insufficient. The RGC should take steps to implement these recommendations, which target the elimination of risk of land-plot loss, the improvement of access to jobs for resettled citizens, the resolution of economic legacy issues and the restructuring of independent and internal monitoring mechanisms. 15 The RGC should provide public education, health and security services at relocation sites. 6. Land Dispute Resolution Mechanism Between 2007 and 2011, the number of unsolved land disputes has continued to increase. 16 Based on the available data for 2011, out of a total number of 284 ongoing land disputes 17, 87 land dispute cases, or 31%, have gone through the resolution process and have either been fully resolved or partly resolved or the resolution process is on-going. Of the remaining 162 cases (57% of the total), have never been through any formal resolution process, despite complaints being raised to the authorities or courts. Out of the 87 land dispute cases which entered a dispute resolution, only 40 cases recorded as fully resolved by November The RGC should conduct a comprehensive assessment of the dispute resolution mechanisms. The RGC should strengthen the existing dispute resolution mechanisms such the Cadastral Commission, the National Authority for Land Dispute Resolution and the judiciary. 7. Work with Special Rapporteur During the period between 2009 and 2013, the RGC generally responded well to requests for country visits from the United Nations Special Rapporteur for Human Rights, Mr. Surya Subedi. Several countries reports could have been produced from these visits regarding human rights abuses related to land and housing; however the RGC will not accept such findings. The relationship between the RGC and the special rapporteur seems to deteriorating rather than improving, with Prime Minister Hun Sen refusing to meet Mr. Subedi during his visit in The RGC should accept the recommendations of the special rapporteur and work closely and openly with him. 15 The ADB has not disclosed Cernea s Report to the public, presumably due to its unfavourable evaluation of the railway project. The recommendations from this report, however, detail how a combination of legal, financial, educational and governmental changes are essential to rectifying the current human rights abuses. He places particular emphasis on the importance of census-taking among resettled peoples to reduce risk of land-plot loss to moneylenders and other institutions by preempting unlawful evictions. With regards to income recovery, Cernea recommends that the ADB complete an empirical evaluation of the real income effect of resettlement, that the Inter-ministerial Resettlement Committee (IRC) offer incentives to small or mid-size entrepreneurs to install enterprises in surplus land around new sites, and that the RGC strategize a substantive shift to training for higher-level professional skills. The report highlights that a mid-term Resettlement Audit should be completed during the project s life to remedy economic legacy issues. Lastly, to improve the organization of independent and internal monitoring, Cernea recommends that: conflicts of interests should be eliminated; a small Independent Monitoring Panel be appointed with expertise in different areas; a monitoring unit within the IRC be created; the ADB streamline all four stages of its Grievance Redress Mechanism into a single avenue; the ADB and AusAID increase funding for training of domestic resettlement staff; family budgets of affected residents be conducted; and a study tour to China be undertaken to learn about planning, designing, resourcing and evaluating resettlement. 16 The NGO Forum on Cambodia. (in press). Statistical Analysis of Land Disputes in Cambodia, Phnom Penh: The NGO Forum on Cambodia (NGOF). 17 _The NGO Forums database only records land dispute cases that involve 5 households or more 95

100 Attachment A List of Supporting Organisations This report is endorsed, either in part or in whole, by the following organisations: 1- ActionAid Cambodia (AAC) 2- Cambodian Community Development (CCD-Kratie) 3- Christians for Development Kampuchea (CDK-Battambang) 4- Community Empowerment Development Team (CEDT) 5- Cambodian Human Rights Action Committee (CHRAC) 6- Cambodia Indigenous Youth Association (CIYA) 7- Community Legal Education Centre (CLEC) 8- Development Partners in Action (DPA) 9- Equitable Cambodia (EC) 10- Highlander Association (HA-Rattanakiri) 11- Housing Rights Taskforce (HRTF) 12- International Bridges Justice (IBJ) 13- Indigenous Community Support Organization (ICSO) 14- Kunathor (Battambang) 15- Mlup Baitong 16- My Village (MVI-Mondulkiri) 17- The NGO Forum on Cambodia (NGOF) 18- Ponlok khmer (PKH-Preah Vihear) 19- Save Vulnerable Cambodians (SVC) 20- Trocaire 21- Urban Poor Women Development (UPWD) 22- World Vision Cambodia (WVC) 96

101 FIDH and ADHOC Joint Submission to the Universal Periodic Review of Cambodia June nd Cycle Land, Housing and Natural Resources Rights 1. This is a joint submission of International Federation for Human Rights (FIDH) and its member organization the Cambodian Human Rights and Development Association (ADHOC). This submission outlines the Royal Government of Cambodia s progress following the commitments it has made and recommendations it has adopted during the 2009 Universal Periodic Review in the areas of land, housing and natural resources. It is based on our observations on the ground and utilizes ADHOC s extensive countrywide presence with offices in 23 out of the 24 provinces in Cambodia. Executive Summary 2. During its Universal Periodic Review (UPR) in 2009, the Government of Cambodia accepted 91 recommendations to improve the human rights situation in the country. Nine of these address land, housing and natural resources rights. Since the 2009 UPR, Cambodia has largely failed to implement these recommendations. A few forward steps were taken by granting of land titles and the passage of a moratorium on new Economic Land Concessions (ELCs) in 2012, although the implementation of these has been inconsistent. Land grabs and forced evictions continue and leave citizens and communities landless, vulnerable, and victim to further human rights violations. 3. The Cambodian Constitution and the 2001 Land Law, among others, protect land, housing, and natural resources. However, Cambodia s development policies on land are opaque and facilitate large-scale land grabbing in the form of leases under Economic Land Concessions (ELCs) and Social Land Concessions (SLCs). This unlawful land grabbing occurs nationwide both small and large scale with powerful members of society circumscribing or manipulating the law and policies at the expense of the poor. As a result, an ever-increasing percentage of the Cambodian population is landless Cambodia has failed to uphold citizens right to adequate standard of living and property, including security of tenure. Hundreds of thousands of land titles have been delivered in the last few years 2 ; however, successive land titling programs have failed to address the needs of the people who are most in need of land tenure security, i.e., indigenous people and those who live in informal settlements and disputed areas. Indigenous communities face particularly tremendous obstacles in being recognized as legal entities and registering their land for collective ownership. As of June 2013, only eight such communities had been granted collective land titles. Others are losing their lands. 1 2 According to the World Bank, the percentage of landless people increased from 13% in 1997 to 25% in As of November 2011, the systematic land registration process had delivered 1,740,839 titles (LSSAP, Land Is Life: Land Administration Sub-Sector Program Newsletter, Issue 2 (November 2011). See NGO Position Papers on Cambodia s Development in : Monitoring the Implementation of the National Strategic Development Plan and the 2010 CDCF Joint Monitoring Indicators (25 September 2012), p

102 5. When land, housing and natural resources rights are denied, a host of other rights and freedoms may be negatively impacted. This is particularly the case when those evicted are left homeless, receive sub-standard compensation, and when, as usual, the resettlement sites are inadequate, remote or lack basic public services or facilities The Government has been suppressing, often violently, peaceful protests and is increasingly harassing community representatives and land and housing rights activists. For example, in Phnom Penh, peaceful demonstrations for land and housing rights organized by the Boeung Kak, Borei Keila and other communities were systematically suppressed Across the country, the Government has been harassing and physically abusing community members and advocates protesting against unlawful deprivation of their land rights or encroachment on the natural resources they depend upon for livelihood. The Government also has arrested and unduly prosecuted them. On several occasions, the Government disrupted and dismantled training sessions and community empowerment meetings organized by civil society organizations. International Commitments of the Kingdom of Cambodia relating to Land, Housing and Natural Resources Rights. 8. Cambodia is a state party to the ICESCR, which imposes the obligation to guarantee the right of individuals to adequate standard of living, which includes adequate food, clothing and housing, and [ ] the continuous improvement of living conditions 5. The right to adequate housing extends to the obligation to confer legal security of tenure upon those persons and households currently lacking such protection 6 and to adopt a national housing strategy that defines objectives, identifies available resources and sets out responsibilities and time-frames for its implementation Under the right to adequate housing, forced eviction, i.e., the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal and other protection, is unlawful. 8 This means that the Government must, at a minimum, consult individuals about proposed projects and resettlement solutions prior to implementation, and people have the right to meaningful judicial and administrative recourses. Feasible alternatives must be explored and, if evictions are ordered nevertheless, the Government must give adequate notice and observe general principles of reasonableness and proportionality For instance, children s right to education may be violated if there are no schools near the resettlement areas. If relocation sites are squalid, there may be a decrease in life expectancy and an increase in diseases, affecting the right to health. Similarly, the right to work may be denied because of homelessness or relocation that is far from places where employment is available. The rights to privacy and personal security may also be affected. Last, cultural rights may be violated if housing is a significant part of people s identities and traditions (this holds true, in particular, for indigenous people). For a detailed case study, please see ADHOC report A Turning Point? Land, Housing and Natural Resources Rights in Cambodia in 2012 (Feb 2013) Article 11(1), International Covenant on Economic, Social and Cultural Rights (ICESCR). United Nations Committee on Economic, Social and Cultural Rights, General Comment no. 4: The Right to Adequate Housing (Art. 11(1)), 13 December 1991, para. 8(a). Ibid., para. 12. UN Committee on Economic, Social and Cultural Rights, General Comment no. 7: The Right to Adequate Housing (Art. 11(1)): Forced Evictions, 20 May 1997, para. 3. Ibid., paras

103 10. Livelihoods and natural resources are crucial to realization of the right to adequate food and the right to water, which are part of the right to an adequate standard of living. 10 The Government of Cambodia must refrain from actions, including business and development enterprises, when those might hinder access to adequate food and water and take positive steps to protect and strengthen food security. 11 National Laws in Place Pertaining to Land, Housing and Natural Resources Rights 11. The Constitution of the Kingdom of Cambodia guarantees to people under Article 31 all fundamental international human rights. Article 44 safeguards the right to private ownership and to ownership of land and stipulates that [t]he right to confiscate properties from any person shall be exercised only in the public interest as provided for under the law and shall require fair and just compensation [paid] in advance. 12. Article 30 of the Land Law 2001 stipulates that any person who, for no less than five years prior to the promulgation of [the law], enjoyed peaceful, uncontested possession of immovable property that can lawfully be privately possessed, has the right to request a definitive title of ownership The 2001 Land Law outlines two categories of state land state public land and state private land and a procedure for re-classification and a framework for land titling. It also authorizes the granting of Economic (ELCs) and Social Land Concessions (SLCs), setting out conditions and procedures that have been developed in specific sub-decrees, namely the 2005 Sub-Decree on Economic Land Concessions and the 2003 Sub-Decree on Social Land Concessions. These laws provide some due standards and safeguards; however, the Government frequently circumvents or fails to implement the standards and safeguards under these laws. Cambodia does not have a broader national housing or evictions policy, although draft laws have been under discussion. 14. Cambodia s natural resources are protected by several laws. The 2008 Protected Areas Law defines several categories of protected areas national parks, wildlife sanctuaries, protected landscapes, Ramsar (wetlands) sites, biosphere reserves, marine parks, natural heritage sites and multiple use areas as well as a zoning system. The former two are wholly protected from encroachment, whereas the latter two may see some development or infrastructure building, subject to government approval. Modifications of protected areas, their zones or boundaries must follow legal and sub-decree procedures. The 2002 Forestry Law defines the framework for the management, harvesting, use, development and conservation of the forests As the United Nations Special Rapporteur on the Right to Food put it, rural poor suffer from hunger because they lack access to resources such as land, do not hold secure tenure, are bound by unjust sharecropping contracts [ ] (Third Report of the UN Special Rapporteur on the Right to Food, Jean Ziegler, UN Doc. E/CN.4/2003/54, 10 January 2003, para. 16). States must also make sure that activities of business enterprises do not prevent citizens from having access to adequate food or water. See ibid., para. 27, and UN Committee on Economic, Social and Cultural Rights, General Comment no. 15: The Right to Water (Arts. 11 and 12), 20 January The second paragraph reads as follows: In case the granting of a definitive title to ownership is subject to an opposition, the claimant has to prove that he himself fulfills the conditions of peaceful, uncontested possession for no less than five years over the contested immovable property or to prove that he purchased the immovable property from the original possessor or his legal beneficiary or from the person to whom the ownership was transferred, or from their successors. 99

104 Land Reform and Equitable Development: Recommendations accepted by Cambodia 60. Intensify its engagement with the international community to share its experiences in strengthening good governance and the land reform programme with a view to effectively fulfilling the Government s duties with accountability and pursuing equitable and efficient management of the distribution and utilization of land (Myanmar). 61. Intensify efforts to promote fair access to land ownership and good governance, and continue reforms undertaken with the assistance of the international community, in particular the High Commissioner for Human Rights, to reinforce institutional capacities and achieve the enjoyment of full human rights by the population (Algeria). 63. Consider fostering policies on land use and urban-rural inequality and continue efforts to combat poverty (Brazil). In-Country Observations On Economic and Social Land Concessions: 15. The Ministry of Agriculture, Forestry and Fisheries has the mandate to grant ELCs and SLCs. Thus far, it has refused to disclose comprehensive information on existing ELCs, and there is a lack of transparency on how the Ministry grants ELCs. 16. According to information collected by ADHOC, as of late 2012, the Government granted to or reserved for private companies at least 2,657,470 hectares of land. In 2012 alone, the Government issued 66 sub decrees reserving 381,121 hectares for ELCs. Thirty-three of these were granted in 2012 after the Government announced a moratorium on ELCs on 07 May Almost all ELCs granted in 2012 are in protected areas and in areas where communities, including indigenous peoples, reside. (While a person or company, whether individually or through separate legal entities, is only allowed under law 10,000 hectares, many politically connected individuals register multiple concessions under different companies, which they manage directly or through their relatives. For instance, Senator Ly Yong Phat and his wife have been granted two sugarcane concessions in Kampong Speu province, totaling 20,000 hectares. The concessions are adjacent and actually make up only one ELC. The two companies (Phnom Penh Sugar Company and Kampong Speu Sugar Company) share the same offices. In addition, several ELCs physically exceed 10,000 hectares, notably the Pheapimex concession in Pursat and Kampong Chhnang provinces, which is as large as 315,000 hectares. 18. The Government rarely conducts or requires meaningful consultations with affected communities or undertakes Social and Environmental Impact Assessments, although those are required under law. In many instances, affected communities only find out about concessions when the bulldozers arrive at their doorsteps. Companies often begin clearing land before the ELCs are officially granted. The laws provide that the granting of ELCs must be done through open solicitation and competitive bidding, but, in reality, the process is often corrupt. 19. The SLC policy aims at alleviating poverty by providing land to poor, landless families and army veterans. This land can be used for residential or farming purposes. The Government is increasing the number of SLCs granted annually twice as many SLCs were granted in 2012 than in Corruption, mismanagement and nepotism have been reported. Procedures are not complied with and consultations rarely take place. Abuses that are 100

105 reported go uninvestigated. For example, land has been granted to fake NGOs, which have then sold the land for profit. Land also has been confiscated from poor families by politically connected individuals or awarded to members of former soldiers associations. Former residents have been evicted from SLC areas or pressured into becoming members of soldiers associations. Moratorium and Land Titling Scheme: Recommendations accepted by Cambodia 64 (a). Fully implement the 2001 land law and institute a moratorium on evictions until safeguards such as full compensation and access to basic services in resettlement areas can be guaranteed (Sweden); (b) adopt a moratorium on eviction until measures are taken to guarantee effective implementation of the 2001 law on land property and to deal with this problem in a more humane and dignified manner (Switzerland); (c) put an end to forced evictions, notably by improving the application of the land law of 2001, ensuring a better verification of land titles and guaranteeing strengthened protection of the population affected by the expropriations, which implies in particular prior consultations, a search for alternative solutions to expropriations, offers of re-housing and appropriate compensation of evicted persons (France). In-Country Observations: 20. On 7 May 2012, the Government issued Directive 001 establishing a moratorium on the granting of new ELCs. Directive 001 also called for a review of all existing concessions in order to verify compliance with relevant laws and regulations. All concessions that were found to violate the laws were to be revoked. No moratorium on evictions has been issued. 21. ELCs being processed as of 7 May 2012 were excluded from the moratorium. The data collected by ADHOC is that at least 33 ELCs were granted in 2012 following the 7 May 2012 moratorium. It is impossible to verify how many of these were indeed formally in process on 7 May 2012 because of the refusal of the Government to provide such information. 22. On 14 June 2012, the Prime Minister initiated the first round of a land titling program implemented by youth volunteers. This was seen as successful by many as hundreds of thousands of families were given titles and greater security of tenure. However, disputed areas were left outside of the scheme, and it did not address the situation of indigenous communities. Public authorities have obstructed independent NGOs and observers from monitoring implementation of the new scheme. Forced Evictions, Lack of Compensation and Inadequate Relocation of Evictees: Recommendations accepted by Cambodia 65. Continue to prioritize the issue of land evictions and to work with the Special Rapporteur to ensure an end to forced evictions and fulfill its obligations to respect and protect the human rights of all Cambodians, including individuals belonging to indigenous groups (Ireland). 66. (a) Undertake a transparent and fair process to determine the conditions and procedures of involuntary relocation (Canada); (b) halt relocations of families to uninhabitable sites and consider evictions as a last recourse, as was requested by the Secretary-General (Germany); 101

106 (c) develop an effective, transparent and fair resettlement policy and process that is based on national consultations and international best practice and suspend all planned resettlements until this framework is in place(united Kingdom); (d) increase efforts to ensure that evictions occur in compliance with the land law and that greater attention is paid to ensuring that communities relocated to resettlement sites have access to appropriate facilities, especially in urban areas (Australia); (e) work to advance the legal and policy framework on evictions, expropriations and resettlements and to ensure that those resettled have access to the necessary facilities and support (New Zealand). 67. Adopt and implement a strict legislative framework on evictions and resettlement which ensures that evictions and relocations are legal, negotiated and fairly compensated (Austria). In-Country Observations: 23. Provisions in the Land Law grant ownership based on proof of possession of land for five years prior to the law coming into force. Nevertheless, the Government favors business interests over the recognition of the people s legitimate claims to ownership under the Law. In the countryside, the Government often designates farmers who have occupied their land for years as new comers or illegal squatters, and this development narrative is then used to evict the people without compensation. 24. While evictions are more frequent and effect greater numbers of people in the countryside, it also plagues urban settlements. In almost all cases, the Government failed to comply with aforementioned national and international legal standards. Due to these Government inadequacies and the failure to compensate former residents, protests and demonstrations were commonplace. However, the Government refused to apply Article 36 of the Land Law 2001, which permits it to delay an eviction if that eviction gives rise to instability or serious social repercussions. 25. In instances when communities are relocated pursuant to law, the Government often relocates them to areas where they have no access to clean water, sanitation and electricity. In some cases, many years later, despite requests and advocacy, the Government still has not yet provided access to those basic services. People are forced to buy water from private ponds and electricity from local suppliers. In addition, resettlement sites are often many dozens of kilometers from their original homes, and evictees thereby are deprived of access to jobs, education and income-generation activities. In the countryside, evictees and people whose activities have been disrupted because of ELCs or land grabbing often have no choice but to continue to work, often as day laborers, on their own land, from which they were evicted, for the concessionaire companies that now lease it. In the alternative, workers often have no choice but to migrate and are made vulnerable to trafficking abuses. 26. ELCs to agro-industrial and mining operations and large-scale infrastructure such as dams and railways have devastated farm and indigenous lands. The Government usually awards ELCs without Social and Environmental Impact assessments, which are required by law, but rarely done. The companies clear fields, grazing lands and forests that the people depend upon for their daily subsistence. Some set up checkpoints and prevent people from using public roads or provide easements for right of access. People are obstructed from carrying out activities central to their economic well-being and their normal way of life. 27. Food security is threatened as a result of evictions and dispossessions. In rural areas, the destruction of farmlands and rice fields threatens food security at the local level. Farmers are sometimes appointed with new land, but those plots are frequently far away from their villages, smaller, and less fertile. As a result, their outputs decrease and their living standards deteriorate. 102

107 28. Land concessions also often encroach upon land of cultural and spiritual significance, including burial sites and sacred forests. As in all other instances, the Government failed to consult with those communities prior to the implementation of ELC projects and those communities had no recourse in face of the fait accompli. 29. Indigenous communities face additional obstacles. The Government often refuses to recognize them as legal entities that may register land for collective ownership. As of June 2013, only eight such communities have successfully been granted collective land titles. Others are forced to split up ancestral and communal lands and often lose their communal identities in the process. Effective Remedies: Recommendations accepted by Cambodia 68. Enter into a dialogue with the civil society concerned with a view to addressing incidents of unlawful land-grabbing and evictions (Netherlands). In-Country Observations: 30. Cambodians have few meaningful avenues of recourse and remedy to evictions. Because of the wealth, power, political-connections, and/or the corrupt interests of those involved, individuals and communities have near impossible chances in seeking remedies for ELCs and forced evictions, particularly for city beautification or development projects. Evictees who seek remedies are often threatened, harassed or coerced to accept sub-standard compensation. In some ELC cases, people have received back a limited parcel of land (usually only few hectares) following mediation. 31. Official fees and bribes are required to get land registered or to file complaints with the courts and prevent many evictees from filing cases. The government has recently strengthened the mandate of the Cadastral Commission, which is mandated to investigate small-scale ELC disputes. The Commission has taken new initiatives to reduce the caseload; however it is ill-equipped to deal with the full extent of the problem, particularly when stolen land has been registered in another s name. 32. Evictees that exercise their rights to freedom of expression and assembly through advocacy, protest or other public displays of dissent are often subject to harassment, abuse and violence by the Government or private security. The Government violently suppresses peaceful protests. For example, in Phnom Penh, peaceful demonstrations for land and housing rights organized by Boeung Kak, Borei Keila and other communities were systematically suppressed. Across the country, community members that protest the land grabs, evictions and encroachment on natural resources against powerful interests are intimidated, physically abused, and arrested. On several occasions, the Government disrupted or dismantled training sessions and community empowerment meetings organized by civil society organizations. 33. The Government also frequently prosecutes land and housing rights advocates through specious criminal charges, most typically criminal incitement, defamation and disinformation. In these cases, the Courts of Cambodia have categorically ordered pre-trial detention with the intention of breaking the advocate s will. 103

108 Recommendations to the Royal Government of Cambodia: Land Reform and Equitable Development: In accordance with internationally accepted principles of freedom of information, the Royal Government of Cambodia: 34. Should immediately disclose to the public all information on existing ELCs, including their exact location, size, boundaries, duration, ownership, intended use, any Social and Environmental Impact Assessments, consultation processes, and applicable compensation and relocation schemes. 35. Should disclose information on cancelled concessions, follow-up to cancellations, and state revenues derived from ELCs. 36. Should demarcate and publish information about protected areas and their internal zones and put an end to ELCs or other harmful activities in areas that fulfill the criteria of the core and conservation zones. In accordance with internationally accepted principles on the individual s rights to adequate standard of living and property and indigenous peoples rights, the Royal Government of Cambodia: 37. Should implement in a transparent manner an official land titling program and address all land disputes as a matter of priority. 38. Should consider and accelerate the registration of indigenous communities as legal entities and prioritize the registration of their lands in accordance with the Land Law. 39. Should recognize the possession rights of people living in informal settlements, giving special attention to informal urban settlements. In accordance with the internationally accepted principles on administration of justice and due process of law, the Royal Government of Cambodia: 40. Should institute effective and meaningful procedures for contesting proposed land concessions and consider special measures for offsetting the frequent imbalance in political and financial power between the evictee and business interests. 41. Should closely monitor the process of granting ELCs and SLCs and investigate all allegations of abuse, corruption, mismanagement or lack of transparency. 42. Should systematically assess the environmental impact of large-scale development projects, such as dams and mining, prior to their implementation and re-assess their impacts once implementation has begun. 104

109 Moratorium and Land Titling Scheme: In accordance with internationally accepted principles on right to adequate standard of living and property, the Royal Government of Cambodia: 43. Should extend the moratorium on the granting on new ELCs and publicly disclose how many ELCs were in process on 7 May 2012, the date the current moratorium was announced. 44. Should adopt a national housing policy in line with international human rights standards and, as requested by the UN Special Rapporteur on the Right to Adequate Housing, carry out a mapping of the housing needs of the country. In accordance with the Government s prior commitments to intensify engagements with the international community, the Royal Government of Cambodia: 45. Should extend invitations to the UN Special Procedures thematic mandate holders who have requested visits to Cambodia, notably the Special Rapporteur on the Independence of Judges and Lawyers and the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, and extend a standing invitation to all other thematic Special Procedures. Forced Evictions, Lack of Compensation and Inadequate Relocation of Evictees: In accordance with the individual s right to adequate standard of living, the Royal Government of Cambodia: 46. Must ensure that all relocation sites for evictees have basic services including access to electricity, water, and sanitation, public education, health and security services. 47. Should adopt an act on evictions that is in line with international human rights standards and enforce a moratorium on evictions in urban and rural areas until the process of land titling has been completed. Effective Remedies: In accordance with internationally accepted principles governing the right to remedy, the Royal Government of Cambodia: 48. Must immediately provide effective remedies to people negatively affected by ELCs, SLCs and other development projects and revoke all concessions that do not comply with international and domestic laws. 49. Should prioritize the settlement of disputes over land and provide conflict resolution institutions and mechanisms with adequate financial, human and institutional resources. 50. Should strengthen the mandate and resources of the Cadastral Commission. 51. Should facilitate the work of land and housing advocates and civil society organizations to investigate land grabbing and concession cases. In accordance with internationally accepted principles governing the right to exercise one s rights to expression and assembly and to be free from state harassment and arbitrary state action, the Royal Government of Cambodia: 105

110 52. Must cease all political and judicial harassment and violence against peaceful protests by communities, their representatives, and other advocates of land and housing issues. 53. Must immediately release all community representatives and housing and land rights advocates who are currently detained or imprisoned for exercise of their freedoms of expression and assembly. 54. Must expunge the record of all representatives and advocates that have been convicted of crimes because of their exercise of internationally and domestically protected rights. 106

111 Joint NGO Submission to the 2 nd cycle of the Universal Periodic Review of Cambodia June 2013; focus on Natural Resources and Forestry sectors: Coordinated by NGO Forum This joint submission has been prepared in consultation with a number of key Cambodia NGOs, It has been endorsed, in whole or part, by NGO Forum on Cambodia, Cambodia Indigenous Youth Association, Ponluk Khmer and Tekdeysovanphum Organizations. Forest and Environmental concerns and recommendations: On 26 April 2012, an 1 environmental activist, Mr. Chhut Wuty was killed by military police during his mission to investigate illegal logging activities in Koh Kong Province. Later, 14 years old girl 2 name Heng Chentha was shot to dead in a force eviction of a village in Broma village, Kamopong Damrey commune, Chlong district, Kratie Province, due to villagers lands were grabbed by an ELC project. As a result, these cases were shut down in the court without any further interventions. It indicates that the judiciary system is not independent and causes under threat for communities activists in conserving the natural resources. In this sense, human and environmental rights are violated since they are complementary. In addition, in April 2013, 27 patrol members 3 of protected community forest detained by military soldiers while returning to their office with two chainsaws and 100 planks of luxuries timber in Oddor Meanchey Province, since this community received agreement from MAFF as well as a part of REDD+ pilot project in Cambodia. The judiciary system should re-investigate the cases of environmental or natural resource and land activists such as Mr. Chhut Vuthy, Heng Chentha, the 14 yearold girl and other forest conservation activists. The governments should seriously address the drivers of deforestation and forest degradation through policy studies, associated reforms, strengthening laws enforcement and show their political will and commitment to represent the interest of their citizenry in forest and environment conservation, as well as the UNFCCC negotiations such as the assurance of human rights, social and environmental safeguards including: Respect for UNDRIP and application of right of IPs to FPIC, Rights to lands, Territories and Resources, Clear guidelines and clarity in benefit sharing mechanism, Inclusion of gender safeguards, REDD+ financing and Exclusion of conflict areas. In July 04, 2012, NGOs and Civil Societies appreciate the RGC released a Directive 01 4 on Measures to Strengthen and Enhance the Effectiveness of the Economic Land Concession Management, and moratorium granting new ELCs. However, the implementation of directive 01 is not fully consulted with local/ips communities who want to register their communal land titles. Moreover, regulations and laws including EIA process have not fully engaged and consulted with local communities in particular IP communities, and we observed that economic land concessions (ELCs) were granted before EIA has been undertaken. Economic land concessions (ELCs) were granted to private companies in the areas where huge forest remaining, which affected the local and indigenous peoples livelihood throughout forest land clearance activity. ELCs granted in the area mostly have not complied with the law and sub-decrees on ELC. In 1 Statement can be downloaded at NGOF website: 2 ADHOC statement on issued in May 17, Cambodia authorities must put an end to the cycle of violence related to land and natural resource right. 3 Phnom Penh Post, Soldiers detain REDD forest patrol members, in April The Priminister issued Directive 01on Measures to Strengthen and Enhance the Effectiveness of the Economic Land Concession Management, and moratorium granting new ELCs, July

112 addition, the updates of reviewing existing ELCs applications are not accessible in the public through Ministry of Agriculture, Forestry and Fisheries (MAFF) and Ministry of Environment (MoE) websites. Furthermore, some ELCs companies have started their operation before receiving license approval. 5 ELCs are now covering 2,036,170 ha in equivalent to 53% of Cambodia arable land, and there are some case studies on ELCs in northeastern 6 Cambodia indicated that the overlapping between ELCs and communities lands and forest conservation areas led to conflicts and land grabbing due to the project developers didn t comply with Free, Prior informed and Consent principles with local and indigenous peoples, especially in the territories of indigenous communities. Monitoring & Evaluation system of ELCs database should be regularly updated in respected ministries website, and the review of ELCs applications should be publicly accessible and ensuring that those information is transparent. In addition, the respected ministries should set up sub-national committees who are responsible for spot checking ELCs projects in the national while to ascertain that those projects are well-demarcated without any conflicts, and check up existing ELCs concessionaires whether they respect and strictly enforce the national policies and regulations. Whilst, the consultation with relevant stakeholders should be included in all stages, design to implementation especially consultation with local and indigenous peoples communities who directly affected by the news development projects in their territories, in order to avoid displacement and conflicts. MAFF developed National Forestry Program (NFP) that tend to promote conservation and sustainable development through social forest management that contribute to equitable Marco- economic growth and poverty reduction, in particularly in rural areas, and Community Protected Areas Law is established by MoE and community forestry implemented by MAFF. However, as NGOs and CSOs we observed that the processes of obtaining approval from MAFF or MoE are very complicated and slow in approval compared to granting of ELCs. CFs or CPAs are often awarded within degraded forest or less desirable areas, where local and indigenous peoples face challenges to rehabilitate and utilize the forests. There are several cases of ELCs overlapping and encroaching CFs and CPAs areas leading to decrease the size of these areas 7. The RGC should accelerate and streamline the processes of CFs and CPAs registration or formulization. Communities have for generations sustainably managed and utilized environment with the use of traditional knowledge. In recognition of local and indigenous peoples communities role, the government has developed policies and laws in establishing community access rights to forest resources. However, many of indigenous peoples communities traditional tenure of non-timber forest products (NTFPs) like resin trees were cut illegally and violated by offenders and the concessionaires without a proper consultation and compensation with local and indigenous peoples communities, in which has manifold impacts on the socio-economic life of communities. The RGC should strengthening the tenure and access rights by promoting effective agreements on community forestry and community Protected Area through capacity building on laws and policies on conflict meditation, community mapping and natural resource management planning in the intention of promoting forest communities capacity and livelihoods. 5 NGO position papers on Cambodia s development in , September 2012, forestry sector, page NGO Forum on Cambodia, research paper on Economic Land Concession and Local Communities. It can be downloaded through NGOF website: 7 NGO position papers on Cambodia s development in , September 2012, forestry sector, page 87, and the data is accessible through Open Development, LICAHDO and ADHOC websites to elaborate more information on ELCs and Land grabbing. 108

113 According to NFP , 8 Forest is defined as the units of natural ecosystem or plantation in the forms of wetland, low land and dry land which covers by natural stands or plantation trees with a height from 5 meters on an area last least 0.5 hectares with a canopy of more than 10 per cent. The definition is negatively affect the natural forests, biodiversity, wild life habitats and ecosystem services that are significant in contribution to socio-economic to development, environment protection and supporting to local and indigenous peoples community livelihoods due to plantations expansion and including as forest coverage. The conversion of natural forest to plantation is also critically affecting the implementation of National REDD+ program, which focus on natural forest for carbon financing. The RGC should re-define forest definition refer to natural forest by excluded plantation or artificial forests, because natural forests are homes of biodiversity and wildlife habitats and provide ecological services to society. as well as contribute toward climate change mitigation and enhancing carbon credit sale for national income sources to be primarily supported by more traditional but sustainable forest management. National governments to honor their duty to serve the interest of their peoples affected by REDD+, which includes the protection of community forests, indigenous traditional- owned land, forests and natural resources. REDD+ has both opportunities and risks for civil society organizations and the communities. Foremost risk is the exclusion of indigenous peoples communities and forest dependent in the REDD+ decision-making processes at all levels. Other risks include failure to adequately safeguard the right of indigenous peoples to free prior and informed consent (FPIC), secure tenure and livelihood, insufficient information at the local level and limited capacity and awareness about the REDD+ mechanism. Social and environmental safeguards are seen as core components in national and international forestry and climate change agreements particularly in establishing national REDD+ strategies. For local and indigenous peoples communities, forests have spiritual, subsistence, medicinal and commercial value. Clear mechanism on REDD+ benefit sharing is a need. Ensuring feedback and grievance redress mechanism are in place. National social and environmental safeguards for REDD+ and climate change should be developed by considering the existing policies and international standards and agreements on safeguards. This would include multi-stakeholders engagement and consultation on existing practices and proposed principles, criteria and indicators on safeguards. Safeguards are protection measures to potential risks from the external interventions. 8 National Forest Program, , page

114 11. RIGHTS TO PARTICIPATION IN ELECTIONS KN³kmµaFikaredIm,Ikare)aHeqñatedayesrI nigyutþifm enakm<úca K>b>s>y Committee for Free and Fair Elections in Cambodia (COMFREL) THE REPORT AND STATEMENT ON RIGHTS TO PARTICIPATION IN ELECTIONS IN CAMBODIA FOR UPR SUBMITTED BY: THE COMMITTEE FOR FREE AND FAIR ELECTIONS IN CAMBODIA (COMFREL) June

115 Introduction 1. The following report and recommendations on rights to participation in elections is based on the findings of The Committee for Free and Fair Elections in Cambodia (COMFREL), Government Watch, Parliamentary Watch, Media Watch, Election Watch and Gender Watch. Besides these primary sources, secondary sources from other national and international stakeholders and media have been included in this report. 2. The Royal Government of Cambodia (RGC) should be recognized for accepting and implementing the recommendations of the first UPR and its efforts to follow established international human rights treaties. 3. As a signatory of the International Covenant on Civic and Political Rights (ICCPR), and committed to the Universal Declaration of Human Rights under provisions of the Cambodian Constitution, Cambodia has obliged itself to genuine democratic elections in order to determine political power. The Universal Declaration of Human Rights states, Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. ( ) The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections, which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures (Article 21). Furthermore, the ICCPR states, Every citizen shall have the right and the opportunity ( ) to take part in the conduct of public affairs, directly or through freely chosen representatives; ( ) to vote and to be elected at genuine periodic elections, this shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors (Article 25), as well as the, right to hold opinions without interference and the right to freedom of expression, (Article 19). 4. Cambodia is a constitutional monarchy with a liberal democracy and a multi-party political system. The constitution is the highest law in the country and guarantees the Cambodian people the right to vote and to stand as candidates for election according to articles 34 and 51. The Cambodian Constitution states in several provisions, Khmer citizens of both sexes shall enjoy the right to vote and to stand as candidates for the election. Khmer citizens of both sexes, at least eighteen years old, have the right to vote. Khmer citizens of both sexes, at least twenty-five years old, have the right to stand as candidates for the elections of the members of the National Assembly Provisions restricting the right to vote and the right to stand as candidates for the elections shall be determined by the Electoral Law, (Article 34). Elections 5. Cambodia has conducted four elections using the proportional representation system. The National Assembly elections and Commune Council elections used a direct party list election system. The Senate elections and Sub-national Council elections (capital, provincial, town, district/khan and council elections) all used an indirect election system. 6. The freedom of the 2012 Commune Council and 2008 National Assembly elections was limited and showed no improvement in terms of fairness. Much of the conduct was not conducive to free and fair elections; major weaknesses were present throughout the democratic process, including voter registration and candidate registration. There is a continuing lack of confidence in the election administration and an unequal playing field lacking political competition due to the dominance of the ruling Cambodian People Party (CPP). CPP controls the media and uses state resources for their own purposes. COMFREL 111

116 observed in some communes an atmosphere of intimidation and fear amongst voters that was created by the CPP. Creates an 7. The National Election Committee (NEC) should be reformed to be an independent of the state and an autonomous status. There should be consensus among the major political parties represented in parliament when appointing a president or member to the NEC or Provincial Election Committees (PECs). 8. The current regulations in place to ensure a level playing field and encourage political competition are insufficient. Currently elections in Cambodia cannot be called free or fair. One political party clearly dominates elections and campaigns because of a lack of clear provisions on campaign finance, media campaigns and the use of state resources in campaigns. 9. In regard to campaign finance there is a recommendation suggesting the adoption of regulations and procedures to ensure that it becomes more equal and transparent; this includes limits on finances as well, also be adopted. At the same time, procedures need to be put in place that allow for a close monitoring of the campaign spending of each political party. 10. In regard to media, there is no basis in Cambodian law giving the government the authority to require licenses of Cambodian broadcasters that they exclusively provide. This has not and will not ensure freedom in the media. All major political parties should have fair and equal access to the mass media to convey their messages to the electorate. The way forward is to establish an independent committee on the management and use of state-run television and radio stations. There needs to be an independent entity, responsible for regulating the distribution of licenses and media broadcasts on an open and transparent basis. The Right to Vote and Voter Registration 11. Maintaining an accurate list of registered, eligible voters is a major obstacle and has caused prevented many individuals from exercising their voting rights. There are frequently irregularities in the voter list. For the 2013 National Assembly elections, 13.5 percent of people who registered to vote were not recorded on the voter list. (Their name could not be found at all or their data had been completely changed. This means that some 1.25 million registered voters are likely to be unable to vote in the election in July 1. This issue also impacted the 2008 National Assembly election and 2012 Commune Council election; approximately 440,000 eligible voters went to cast their vote on polling day could not do so because either their name was not on the voter list or they could not find their polling station code or location The RGC and major political parties need to have an open discussion in order to make desperately needed changes the current voter registration system. Procedures should be simplified and improved in order to ensure accurate voter registration data and verification. 1 2 Results from COMFREL s survey, audit and verification on voter list and registration (SVRA- Plus) 2012 Result from COMFREL rapid survey in 2008 and 2012 elections 112

117 A permanent voter registration system should be set up; one which allows voters 18 years of age or older to register to vote at any time throughout the year at their place of residence. Additionally, the government should amend the regulations on issuing National ID cards, allowing permanent lifetime use. Under these rules, a citizen, for practical reasons, should be renew and update their ID photo every 20 years.. Right to Stand for Elections and Election System: 13. The election system of Senate and Sub-National Councils does not reflect the principle of universal suffrage. While universal suffrage emphasizes inclusiveness and nondiscrimination within the group of persons to whom the right to vote is granted, ordinary Cambodian citizens cannot choose their representatives in the senate or in the Sub-national Council. This has resulted in a loss of confidence in the electoral system amongst the public. 14. In keeping with ICCPR standards the RGC safeguards the right of the individual to freely choose their representative. The RGC recommends that all indirect elections, including Senate and Sub-national Council elections, should be changed to universal elections. Universal suffrage, allowing Cambodia s whole electorate of citizens to directly elect the Senate and Sub-national Councils and Khan Councils, should be implemented. Independent candidates who are not affiliated with any political party should be allowed to participate in these elections. 15. The partisan system used for Senate and Sub-national Council elections stipulates that the political parties prepare their candidate list. Eligible voters are sitting elected officials; for Senate elections this includes the 123 members of the National Assembly, and for Subnational Council elections voters are existing commune councilors. This system encourages Commune Councilors and members of the National Assembly to vote along party lines, and almost ensures that all branches of government will be controlled by the same party. 16. Most political parties have no clear democratic procedures to select their candidates. Furthermore, the party has the power to remove the candidate from their position even when they have been elected to a seat by their constituents. This does not give elected officials incentive to vote independently, but rather along party lines to avoid losing their seat. Independent citizens are also unable to stand for elections; a person must be a member of a political party to become a candidate. Cambodian citizens do not have the right to choose their representatives when it comes to the Senate and Sub-national Council. 17. For a modern democracy to emerge, it is recommended that the electoral system be reformed for the next election in one of two ways. The first option is to continue using the indirect election with the preferential system, but allow Commune Councilors to vote for individual candidates. The second option is to use the direct election system for all bodies of government. In order to avoid high costs, the elections can take place on the same day as National Assembly and Commune Council elections; simply add two ballot papers for Senate and Sub-national Council votes. Elections should include both candidates from each political party as well as independent candidates. Such elections are being implemented in other Asian 113

118 countries with similar cultural and economic backgrounds to Cambodia, such as Thailand, Indonesia and the Philippines. 18. During the 4th Legislature of the National Assembly at least 29 members of the National Assembly were removed from their position because they had conflicting viewpoints on policy from the ruling political party. 19. The new National Assembly should be strengthened and allow the non-ruling parties be more involved in the policy-making process. The current trend of the multi-party system moving towards a one-party system should be immediately stopped and reforms put in place to strengthen of the party system by providing public finance and training to political parties, as well as legal changes allowing independent candidates to run for elections. 20. The new RGC should foster institutional and procedural reforms to enforce current constitutional provisions requiring a separation of powers. Current fusions of powers between the executive, legislative and judiciary branches need to be overcome. An inclusive political process involving the three branches in the policy-making process should be fostered in order to construct a parliamentary system based on the principles of a free democracy. Political Participation 21. The RGC should create a curriculum about democracy and integrate it into the formal education program. This will educate the youth in the population and in turn increase the participation of youth in the political process. Today s young people are the future political leaders of Cambodia. 22. The introduction of a quota-system should be considered in order to reach a more proportional representation of female elected officials at all levels. It should be required by law that at least 30 percent of candidates nominated by each political party should be women. An increased participation of women in the political process would help to advance a more inclusive democratization process. 114

119 12. LABOR RIGHTS ISSUE UPR Submission of Cambodia To the Human Rights Council Submitted by: The Cambodian Labour Confederation (CLC) Contact person: Mr. Ath Thun President of CLC No: 2,3G, ST. 26BT, Thnot Chrum Village, Sangkat Boeung Tompun, Khan Meanchey, Phompenh, King dom Of Cambodia. Tel: (+855) / (+855) Website: clccambodia.org Date of submission: 24 June

120 UPR Submission by The Cambodia Labour Confederation To the Human Rights Council for Cambodia s UPR Introduction: In 1993, Cambodia changed the political regime to democracy with constitutional monarchy. It is also opened up its market to the global economy. In 1997, the Labour Law of the Kingdom of Cambodia was established. With regard to the conventions, The Royal Government of Cambodia has ratified 13 conventions of the International Labour Organization (ILO), including the 8 core labour standards. A number of other legal frameworks related to labour rights have also been established such as the Arbitration Council. Despite the abovementioned efforts made by the government, leaders and members of the trade unions still face some serious challenges, which the Cambodian Labour Confederation (CLC) would like to present briefly to the Human Rights Council as follows: 1. The illegal use of short-term or fixed-duration contracts The use of short-term or fixed-duration contracts remains a significant issue in the Cambodian labour context. The law allows the use of this type of contract for up to 2 years, but in practice employers keep giving these fixed-duration contracts to their workforce beyond the prescribed legal limit. I can honestly state that that many employers, approximately 60 percent, use sub-contractors and short-term contracts to avoid the establishment of trade unions in their enterprises, thereby undermining the workers right to freedom of association and to collective bargaining. Moreover, short-term contract workers often enjoy less favourable working conditions, such as lower wages, no or limited social security benefits etc. Recommendation: We urge the government to ensure that employers abide by the law on short-term contracts by ensuring independent investigations by the labour inspection. 2. The assassination of union leaders In 2004, Chea Vichea, Ros Sovanareth and Hy Vuthy were murdered. Due to the serious shortcomings of the Cambodian judicial system, the actual perpetrators of these murders have never been identified. More recently, in February 2012, the Governor of Svay Rieng Province fired into a group of striking workers, mainly women, employed at the Kao Way Factory, a supplier of Puma. Three women were shot and seriously injured. To date, these women have been denied any justice because of the reluctance of the judicial authorities to properly investigate and try the Governor. Recommendation: We urge the government to take thorough measures to investigate the murders, prosecute the perpetrators to the fullest extent of the law and bring justice to the victims. 3. The violation of trade union rights and civil liberties A number of key issues we have witnessed in our work as follows: 3.1. Violence and threats against union leaders and activists It happens regularly that people are hired to attack leaders and members of independent unions. In 2013, there was such a criminal attack on union leaders of the Coalition of Cambodian Apparel Workers Democratic Union (CCAWDU) at the E-garment factory. The gangsters seriously beat workers and union leaders when they were on strike. This intimidation harms the trade union 116

121 movement in many different ways: workers do not feel like becoming member of the unions, and often leaders are dismissed following legitimate actions. In 2010, 40 union leaders were dismissed and this number increased to 45 in 2011 and 116 in Recommendation: We urge the government to protect trade union leaders and activists from all forms of violence and threats The registration of trade unions is problematic Registration of newly formed unions is also a problem. The register officer requires that all unions who want to register at the Ministry of Labour must first give notice to the company. When a union can finally register, the Ministry of Labour often delays the provision of the registration certificate and thus the union cannot start functioning properly. Both allegations violate the labour law and the ILO convention 87. Recommendation: We urge the government, especially the Ministry of Labour, to ensure an adequate and accessible union registration process in all sectors in compliance with the Promulgation The involvement of political parties and employers in unions We also want to indicate that there are political parties and companies that involve themselves in the affairs of trade unions. Obviously, these unions cannot be regarded as independent, autonomous unions that defend the rights of the workers. Moreover, it is a serious violation of Article 3, Section 2 of ILO Convention 87. We urge the government to refrain from any interference in the affairs of trade union organizations and to protect them from any such interference by companies The draft trade union law Since November 2011, Cambodia disposes of a draft trade union law which has not yet been adopted formally. The draft trade union law addresses many of the issues raised above but the draft law needs to go further to include workers from the public sector (civil servants, teachers, police, air and maritime transportation workers, judges etc ) as well as domestic workers. This violates Convention 87. Recommendation: We therefore urge the Government to work together with the unions about this issue with a view to amending the draft trade union law to ensure it is conform with ILO standards as soon as possible. 4. Occupational Safety and Health Occupational safety and health is also a significant issue. Despite the Better Factories program in the garment sector, various problems related to occupational safety and health continue to plague Cambodian workers. Due to their low wages, workers lack sufficient nutrition in their diet. Moreover, factories often do not have sufficient ventilation facilities, which ultimately lead to mass fainting factories across the country. Recently, there was also a case of a building collapsing in the Star Wing Shoe Factory which killed 2 workers and injured an additional 11. This tragedy is due to the lack of standardized building requirements and the lack of inspection and enforcement of the construction systems, which at present do not ensure the safety of workers. Recommendation: The government should take immediate action to monitor the building and the health and safety standards in Cambodia to ensure workers can work in a safe working environment. 117

122 Universal Periodic Review, Cambodia Joint Submission on Human Trafficking for Labor Exploitation (CLEC, LICADHO, LSCW, Human Rights Watch) INTRODUCTION & EXECUTIVE SUMMARY 1. The Community Legal Education Center (CLEC) 1, the Cambodian League for the Promotion and Defense of Human Rights (LICADHO) 2, the Legal Support for Children and Women (LSCW) 3, and Human Rights Watch 4 submit this joint submission on human trafficking for labor exploitation of Cambodian workers. CLEC promotes access to law through legal awareness; legal training and legal assistance to poor and vulnerable Cambodians since LICADHO, operating since 1992, investigates and documents rights violations; provides legal, medical and other assistance to victims of human rights abuses, including victims of trafficking, and advocates for tangible improvements in rule of law and human rights in Cambodia. LSCW was created in 2002, and focuses on issues surrounding domestic workers and trafficking, offering legal and other assistance to victims, promoting public awareness and policy change. 2. CLEC, LICADHO and LCSW are Cambodian NGOs working directly with victims of labor trafficking and exploitation, investigating abuses, providing legal assistance and supporting repatriation and reintegration of trafficking victims. 5 There is a close cooperation and regular exchange with several anti-trafficking NGOs in Malaysia and other countries of the region. 3. Human trafficking in Cambodia has received considerable attention in recent years, with a focus primarily on sex workers. But labor trafficking is emerging as an equally important problem. In the past four and a half years, there has been a substantial increase in trafficking, exploitation and abuses of Cambodian workers. Thousands of vulnerable Cambodians fall prey to human trafficking syndicates and an unregulated labor recruitment industry and are sent as domestic workers or fishermen abroad into situations that amount to forced labor, trafficking, and debt bondage. Abuses include child recruitment, forced confinement, unpaid wages, dismal working conditions, physical and sexual abuse, enforced disappearances, and limited access to assistance or redress. A number of Cambodian migrant workers died in the past years. In the vast majority of cases, Cambodian authorities have failed to investigate and prosecute the perpetrators operating in Cambodia As a result of cooperation between LICADHO, LSCW and CLEC, there may be an overlap in the number of cases documented and/or victims repatriated contained in this report. 118

123 BACKGROUND INFORMATION AND FRAMEWORK International Obligations 4. Cambodia has ratified the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Civil and Political Rights (ICCPR), among others. Cambodia has also ratified all eight International Labour Organization (ILO) Core Labor Standards, the Palermo Protocol to Prevent, Suppress, and Punish Trafficking in Persons Especially Women and Children, and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices. Moreover, Cambodia has signed in 2004 the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families and, as a signatory, Cambodia has a general obligation under international law to refrain from acts which would defeat its object or purpose. 5. As parties to these treaties, as well as customary international law protections, Cambodia is obligated to protect the rights of Cambodian migrant workers, especially women and children, including against forced labor, forced confinement, exploitation, and human trafficking. For instance, Articles 1, 3 and 5 of the 2000 Protocol on Trafficking in Persons, especially Women and Children, which Cambodia ratified in 2007, provides that attempts to commit trafficking in persons, participation as an accomplice in trafficking in persons and organization or direction of other persons to commit trafficking in persons shall be criminalized. 6. Convention No. 189 Concerning Decent Work for Domestic Workers, adopted in June 2011 by the ILO, addresses the specific obligations of governments to protect domestic workers. Cambodia has yet to ratify Convention No. 189, which provides valuable guidance on issues such as establishing complaint mechanisms, ensuring substantial penalties for agencies that violate standards, and prohibitions on salary deductions for recruitment fees. 7. In 2004, Cambodia adopted the ASEAN Declaration against Trafficking in Persons, particularly Women and Children. In the same year, Cambodia committed to bi- and multilateral cooperation with China, Laos, Myanmar, Thailand, and Vietnam as well as government-ngo cooperation in responding to trafficking in persons under the framework of the Coordinated Mekong Ministerial Initiative against Trafficking (COMMIT). A Memorandum of Understanding with Malaysia on cooperation in efforts to combat trafficking remains unsigned. Legislative & Constitutional framework 8. The Labor Code of Cambodia (1997) prohibits forced labor, and Cambodia s Law on Suppression of Human Trafficking and Sexual Exploitation (2008) prohibits human trafficking. 9. On August 17, 2011, the Prime Minister signed the Sub-Decree on the Management of the Sending of Cambodian Workers Abroad through Private Recruitment Agencies ( Sub- Decree 190 ). This supersedes Sub-Decree 57, which was enacted in Sub-Decree 190 is a failure in efforts to protect Cambodians who use recruitment agencies to work abroad. 10. Documented abuses such as near-systematic debt bondage upon recruitment, deaths inside pre-departure training centers, the recruitment of underage workers and subsequent 119

124 falsification of documents, illegal detention of workers, confiscation of passports and contracts from the workers, and the failure to pay salaries are not addressed in the Sub- Decree 190. Worker protections, meanwhile, are vague, limited in scope, and in many cases less stringent than the 1997 Sub-Decree it superseded. 11. On October 15, 2011, amid increased media scrutiny and public pressure, Prime Minister Hun Sen signed a moratorium on the sending of women to Malaysia for domestic work. To date, the temporary ban remains in place, preventing more domestic workers from being trafficked through debt bondage by recruitment agencies or falling into abusive labour conditions in Malaysia. However, the Cambodian authorities have failed to prosecute the majority of documented offenders. Furthermore, it has not provided protection and support of domestic workers already working in Malaysia at the time of issuance of the ban, leaving Cambodian women vulnerable to further abuses and forced contract extensions. Recruitment agencies are seeking to lift the ban as soon as possible. Underlying problems, especially gaps in the regulation of Cambodian recruitment agencies as well legal protections and complaint and support mechanisms for victims have yet to be addressed. Policy measures 12. In December 2011, a National Plan of Action on the Suppression of Human Trafficking, Smuggling, Labour and Sexual Exploitation (STSLS) for was adopted, in line with accepted recommendations under the previous UPR cycle. The plan designates responsibility among involved ministries, provides a basis for allocation of resources and identifies time-bound goals and objectives; however, to date there are serious gaps in the implementation of the measures. PROMOTION AND PROTECTION OF HUMAN RIGHTS ON THE GROUND Trafficking of Cambodian Migrant Domestic Workers to Malaysia Abuses of Prospective Migrant Workers in Cambodia 13. Prior to the ban on sending Cambodian domestic workers to Malaysia, announced in October 2011, prospective migrant workers suffered from a myriad of illegal activities and abuses in Cambodia due to weak regulation of private recruitment agencies and lack of law enforcement. Migrant workers were offered up-front loans and charged exorbitant processing fees, resulting in debt bondage. Girls and women were regularly confined in predeparture training centers; children and young women below the 21 years minimum age under Malaysian law were recruited and identity documents forged. 14. Recruits were required to attend pre-departure training at centers run by the agencies before leaving for Malaysia, and in most occasions were illegally confined in such centers prior to their departure. The centers were generally overcrowded and conditions poor. Many girls and women fell seriously ill, and medical care was virtually non-existent. Moreover, the women and/or their families accumulated debts through cash advances for processing fees and through incentives such as up-front loans, mobile phones or bags of rice, provided by the agencies upon recruitment. Women who changed their mind about migrating and wished to leave the center were prohibited from doing so unless they could repay the processing fees, loans and incentives. The agents often inflated the total cost, rendering repayment 120

125 virtually impossible. Illegal detention or confinement is a criminal offence under Cambodia s Penal Code, and Cambodia s anti-trafficking law includes enticement among methods of unlawful removal of a person that contributes to trafficking. From 2009 to 2011, LICADHO documented 29 cases of illegal detention at training centers in Cambodia, affecting 52 girls and women. Recruitment agencies demanded payments of up to US $1,500 for their release. Some women were subjected to forced labor during their confinement at the centers. During 2010 and 2011, CLEC facilitated the rescue of 115 girls and women from such conditions within training facilities. Out of 28 migrant workers interviewed by Human Rights Watch in 2011, all except one woman reported that they were forced to stay inside their recruitment center during their entire training period. Several workers reported that those who tried to run away from the training centers were brought back and detained in a separate room, and were sometimes beaten. Between July 2010 and February 2011, three workers died on the premises of training centers. In one case, the recruiting agents denied repeated requests by the worker s family to take her to a hospital for treatment. In the other two cases, the agency did not call family members until after the workers had died. No independent investigation has been conducted into the three deaths. In March 2011, one worker attempted to escape from a pre-departure center through a third-story window. She fell and sustained serious injuries. The worker had made multiple requests to leave the center so that she could see her children. All of the requests were denied. 15. Several labor agencies repeatedly recruited underage girls in violation of Cambodian law. Brokers and staff at recruitment centers falsified documents to list children as 18, the minimum legal age required in Cambodia to migrate for employment (under Malaysian law, the minimum legal age for recruitment into domestic work is 21). Of the 193 migrant domestic workers abuse cases handled by LICADHO from 2009 until early 2013, 37 involved girls below the age of 18 in total 59 girls. The underage girls suffered from forced confinement in poor conditions in training centers in Cambodia, overwork and non-payment of salaries, beatings, torture, and rape in Malaysia. Of the 216 cases handled by CLEC from 2010 until early 2013, 90 victims were girls below the age of 18. A partner organization in Malaysia recently reported rescuing a 12-year-old Cambodian girl sent for domestic work, as well as a 15-year-old who arrived in Malaysia at the age of Recruitment agencies enjoy the backing of government officials both at the local and national levels. Some of the key players in the recruitment field are relatives of high ranking officials in charge of regulating or investigating abuses within this labour sector. Corrupt police and officials have been reluctant to investigate crimes and complicit in the illegal activities of the agencies, such as knowingly issuing passports with fake birthdates for underage girls. When the Cambodian Government announced a ban to sending workers to Malaysia, it failed to prosecute the majority of the perpetrators in Cambodia or making provisions for the repatriation of women already working in abusive environments in Malaysia. To date, only one Cambodian recruitment agency for domestic workers has been closed following an investigation by the government, and staffers at another two agencies were convicted, while more than 10 agencies involved in the trafficking of girls and women to Malaysia were never held accountable and remain in operation. 121

126 Rights Violations Affecting Domestic Workers in Malaysia 17. Cambodian migrant domestic workers in Malaysia face poor living conditions, excessively long working hours, withholding of salary payments, food deprivation, physical, mental and sexual abuse, and even forced labor. A clear trend towards forcing contract extensions on Cambodian migrant workers is discernible, to make up for the absence of new arrivals from Cambodia. Extension work contracts are frequently being signed in private between the employer and the worker (i.e. with no Embassy or NGO present) and often under the direct threat that if a worker does not sign, she will not receive her salary. Employers are claiming that their workers have voluntarily signed the contract, but many workers claim they could not understand the contract. Often passports are withheld and women are threatened with physical violence or imprisonment if they attempt to escape. Many domestic workers have no opportunities to contact their relatives or NGOs and are forced to work for other employers, and hence go missing. In 2012, LICADHO documented 90 cases of forced contract extensions, physical abuse and torture, disappearances or missing women, or women waiting for unpaid salaries in Malaysia, affecting a total of 153 girls and women. In 2011 and 2012, LICADHO has helped assist and/or repatriated some 250 Cambodian domestic workers from Malaysia, some with the help of LSCW and/or CLEC. LSCW reports having dealt with 86 victims from 2010 to 2012, all subjected to violations of their human rights, such as forced contract extension, denial of payment and abuses. From 2012 to May 2013, CLEC has provided assistance to 103 girls and women in cases of death, rape, physical and mental abuse, loss of contact, unpaid salaries, and forced contract extension. In May 2012, a 23-year-old-woman died in Malaysia after being subjected to overwork, food deprivation, and torture by her employers. In October 2012, LICADHO documented the cases of two sisters, including one underage girl, who contacted relatives in Cambodia reporting torture and rape by two their employers. 18. Assistance to migrant domestic workers provided by the Cambodian Embassy in Malaysia is inconsistent, and protection is inadequate. There is a lack of staff and resources to deal with the complaints and cases. Moreover, there seems to be a lack of willingness to assist the victims. Embassy staff fails to provide much needed services such as repatriation or legal aid and the provision of lawyers. In several cases documented, the Embassy simply sent abused domestic workers back to their agents against their will, who in turn force the women to return to their employer, or send them to a second or third employer. In 2011 Human Rights Watch found that the Embassy sent three rape survivors back to their recruiters. In one case, the recruiter eventually sent the rape victim back to the same employer who abused her. None of the three workers had access to any medical or psychological care after they were raped. The two other victims were forced to work against their will on the recruitment company premises. Human Rights Watch also received information that agents at times coerced women to exchange sexual favors for expediting repatriation to Cambodia. A domestic worker rescued in August 2011 by a Malaysian NGO from severe abuse by her employers decided to stay in Malaysia and testify during the prosecution of her former employers. The procedures took one year, during which the Cambodian Embassy offered no assistance at all. After she testified, the Embassy actively thwarted the return of the victim to Cambodia. 122

127 19. The Cambodian Government does not provide effective complaints and redress mechanisms and support services, like legal aid and psychosocial services, for returned domestic workers from Malaysia who have either suffered physical or sexual abuse, became victims of forced labor, or who have not been paid. It remains unclear what ministry is responsible for receiving the complaints of missing and returned migrant workers; implementing officers often refer the supporting NGO to file the complaint with another ministry, typically the Ministry of Interior (MOI). Therefore the majority of supporting NGOs file complaints to the Anti-Trafficking Police under the MOI for victim identification and to identify the responsible broker. Another challenge is jurisdiction in Cambodia for complaints about physical and emotional abuse that happened in Malaysia. Trafficking of Cambodian fishermen & other migrant workers to Thailand and beyond 20. The past four-and-a-half years saw a dramatic increase of Cambodian men to work in exploitative conditions on long-haul fishing trawlers in the South China Sea and off the coasts of Africa. Thousands Cambodian boys and men are affected. Some are lured by Cambodian labor agencies; others are trafficked by brokers and crime syndicates. The victims are kept at sea for months and sometimes years, working 20-hour days without pay, adequate food, or freedom to leave. At the hands of the boat crew, they are often subjected to physical abuse, like beating, torture and drugging. Several Cambodian fishermen have been killed by the crew or died during attempts to escape by swimming to shore. In the past four-and-a-half years, LICADHO documented rights abuses of 350 trafficked Cambodian fishermen. In 2011 and 2012, LICADHO helped repatriate more than 235 fishermen, most of whom fled their boats off the coast of Malaysia and Indonesia. The victims reported slave-like labor conditions and horrific abuses aboard the fishing boats. During the same period, CLEC has documented rights abuses of 69 trafficked fishermen and repatriated 34 victims from similar conditions. 21. Cambodian men, mostly the rural poor, are lured by brokers with the promise of betterpaying jobs in factories or on farms in neighboring Thailand. Upon arrival in Thailand, however, the victims are sold to boat owners and forced to work as fishermen in the South China Sea or further away. 22. The Cambodian recruitment office of the South African-owned Giant Ocean International Fishery Co. Ltd. is responsible for sending nearly 1,000 Cambodian men into exploitative work conditions on fishing boats. The recruitment agency promised lucrative work in Malaysia, Thailand, Japan, but almost none of the Cambodians who were recruited by Giant Ocean were sent to the country identified in the contract. Indeed, most were sent to different countries and even to countries as far away as South Africa, Senegal, and Mauritius. Since the discover in March 2012 of the Giant Ocean, Cambodian NGOs and UN agencies have witnessed a steady increase in the number of victims repatriated back to Cambodia. Their tragic stories reveal a systematic pattern of deception and abuse. In August 2012, a victim of Giant Ocean provided key pieces of documentary evidence which linked Giant Ocean to the Singaporean agency Step-Up Marine Enterprise, which was allegedly been involved in the illegal recruiting and trafficking of fishermen since In 2012, CLEC facilitated the repatriation of 19 Giant Ocean victims. In the same year, LICADHO documented six cases involving 13 Cambodian men trafficked to work as fishermen by Giant Ocean. The men were subjected to unpaid labor, food deprivation, torture and beatings. From December 2011 to early 2013, LSCW has represented in court 44 victims of 123

128 Giant Ocean. 23. In 2012, Giant Ocean was accused of illegally sending workers to China after former workers and their relatives filed complaints. Soon afterwards, the recruitment office in Phnom Penh closed and the head of the recruitment office, Lin Yun Shin, went into hiding. On May 10, 2013, Lin Yu Shin was arrested in Siem Reap on charges of human trafficking. Her husband, the co-owner of Giant Ocean, remains at large. Since the closure of Giant Ocean in early 2012, CLEC has received 36 distinct complaints from both relatives of missing men and fishermen trapped overseas. 24. Reintegration in Cambodia after forced labor on fishing boats is particularly difficult. There are significant mental health issues to cope with upon return but there is a near-total absence of social and mental health services available for men. Trafficking of workers in other industries 25. In 2012 and 2013, CLEC and LICADHO began investigating an increasing number of cases of exploitation and abuse of Cambodian workers sent to construction sites and in factories in Thailand by Cambodian recruitment agencies. Some of the agencies used to be involved in sending domestic workers to Malaysia prior to ban in Furthermore, anti-trafficking NGOs in Malaysia reported frequent abuses of Cambodian migrant workers in construction, factories, and service industries. In February 2013, LICADHO recorded five cases of trafficking to construction sites and factories in Thailand. All of the eight victims were sent by Cambodian recruitment agencies. Abuses included overwork, food deprivation, physical abuse, and disappearance. In two cases the workers were asked to pay US $600 for the right to return to Cambodia. One of the victims was below 18 years of age. Since 2012, CLEC has documented rights abuses of 1,690 Cambodian victims from the seafood processing and construction industries in Thailand. CLEC facilitated the repatriation of 745 victims from situations of severe debt-bondage, illegal confinement and violent imprisonment whilst improving working conditions, erasing debts and returning documents for 940 victims. 26. Further, newly emerging in 2012 were cases of trafficking to China involving forced labor in Chinese garment and laundry factories and forced marriage. CLEC facilitated the repatriation of 14 of the 16 Cambodian victims identified. RECOMMENDATIONS Recommendation 1: We urge the Cambodian Government to immediately ratify ILO Convention No. 189 on Decent Work for Domestic Workers and to bring national laws and enforcement into alignment. Recommendation 2: We urge the Cambodian Government to immediately ratify ILO Convention No. 181 on Private Employment Agencies and to fully implement its provision concerning the prohibition of private employment agencies to charge directly or indirectly any fees or costs to workers. Recommendation 3: Cambodia should develop and enforce new legislation that properly regulates recruitment agencies and provides tangible safeguards for migrant workers. The process of drafting the new law should be transparent and involve meaningful consultation with relevant civil society groups. 124

129 Recommendation 4: The moratorium on export of labor to Malaysia should be upheld until a Memorandum of Understanding between Cambodia and Malaysia is signed that guarantees full protection of Cambodian workers basic rights as well as proper domestic legislation to protect against recruitment agencies abuses. Recommendation 5: The Cambodian Government should clarify which ministry in Cambodia is responsible for receiving cases of labor exploitation of domestic workers in Malaysia. The Ministry of Interior, Ministry of Labour, and Ministry of Foreign Affairs are said to be the primary ministries that complaints are filed with but there is a lack of clarity about which actually has the responsibility to deal with the complaints. There should be an agreed allocation of duties among key Cambodian ministries so that it is clear to whom complaints from domestic workers should be addressed. Recommendation 6: The Cambodian Government should investigate seriously and thoroughly violations of Cambodian migrant workers rights by Cambodian recruitment agencies and their allies and bring all those responsible to justice. In particular, all persons responsible for illegal activities linked to the Giant Ocean Recruitment Company should be identified and appropriately prosecuted to the full extent of the law. Recommendation 7: We urge the Cambodian Government to strengthen the capacities and willingness of the Cambodian Embassy in Malaysia to improve screening to identify victims of abuse and provide adequate services such as legal aid and cost-free repatriation. Recommendation 8: The Cambodian Ministry of Foreign Affairs should call for the Cambodian Embassy in Malaysia to suspend extending passports and Certificates of Identification until there are clearer mechanisms in place to ensure the free and fully informed consent of Cambodian domestic workers who are signing extension contracts. Such clearer mechanisms should include a request the physical presence of a domestic worker at the Embassy in order to extend that worker s passport or Certificate of Identification, as well as that the Cambodian Embassy staff in Malaysia privately interview all Cambodian domestic workers seeking extension of work contracts in order to minimize the opportunity for duress by the employer and to identify any potential abuse of the worker. Recommendation 9: The Cambodian Government should ensure that victims of labor trafficking have effective access to redress, legal remedies and psychosocial support services. In order to fully implement the Palermo Protocol, the Cambodian Government should enact a law on the protection of the victims of human trafficking that clearly identifies the responsibilities of national authorities for the protection of the victims. Recommendation 10: Cambodia should investigate and take action against human trafficking syndicates operating in Cambodia, and cooperate with authorities in Thailand, Malaysia and other countries in accordance with Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Recommendation 11: The Government of Cambodia should cooperate with the Authorities of all countries of destination of migrant workers in opening a clear channel of communication for the safe repatriation of Cambodian migrant workers and the thorough investigation and prosecution of all perpetrators. 125

130 13. PEACE AND SECURITY ISSUE JOINT SUBMISSION TO HUMAN RIGHTS COUNCIL SUBMITTED BY: THE PEACE INSTITUTE OF CAMBODIA YOUTH FOR PEACE WOMEN PEACEMAKEER ALLIANCE FOR CONFLICT TRANSFORMATION ON PEACE AND SECURITY IN CAMBODIA UPR SESSION: 18TH SESSION OF UPR (JANUARY FEBRUARY 2014) SUBMITTED: 24 JUNE 2013 Contact Person: Mr. Long Khet, Executive Director of Youth for Peace Website: Address: 4-6G, Street 513, Sangkat Boeungkak 1, Khan Tuolkork, Phnom Penh 126

131 NGOs Joint Submission to the Universal Periodic Review of the United Nations Human Rights Council General Introduction to Peace and Security in Cambodia After decades of turbulence Cambodia has achieved peace, stability, and economic development, and has become to some extent a democracy with pluralism, and a civil society has strongly emerged after the Peace Agreement. However, all these achievements are not rock solid, but have remained very much fragile when Cambodia is still facing huge challenges in a number of areas such as land disputes, forced eviction, corruption, social injustice, and weak governance. In addition to those challenges, the past violent conflicts have its impacts on the present society such as widespread impunity, culture of fear, social violent behaviors and structural violence (Ernst Jürgensen 2013, p 44). These have affected peace and security, and the democratic space for the exercise of political rights, especially for those who hold opposite opinions. Political activities often have met with repressive measures. Peace is not the absence of war. Efforts have to be made to build a positive peace, a society with justice and equality, and all this is still very far to go. The ruling party is trying to centralize power to control the democratic space, and this has led to imbalance between judiciary, legislative, and executive bodies. Social injustices have created more suffering and frustration within the society which could then lead toward future violent conflicts and social instability. Socio-political change is strongly needed to address all these national issues, if the country is to move in a direction of positive peace to sustain peace and social cohesion. There are still several main elements in society that the organizations that compiled this report feel must be adequately addressed if the country is to achieve sufficient and progress peace and security within Cambodia. Namely, these issues are the growing need to foster greater solidarity between the government and civil society, the need to resolve border disputes with Cambodia s regional neighbors, land titling disagreements and land disputes, the use of provocative language during elections, and a social fear of the return of the Khmer Rouge. A. Solidarity between Government and Civil society NGOs are an important component of civil society in Cambodia. Cambodian civil society works to achieve civil rights and the healthy holistic development of the nation. However, solidarity between Cambodian civil society and the government faces many obstacles. Recently, there have been intimidations, killing, and lawsuits against several human right activists, hindering the work of the organizations the activists represent (ADHOC, Amnesty International). For example, activists such as Mr. Chut Wutty, an environmental activist and human right defender and other people were killed or imprisoned for environmental conservation efforts, addressing border issues, or other campaigns voicing against injustices. While the government continues to persecute human rights activists, the police cannot maintain rule of law elsewhere. The government has demonstrated its ability to take swift action on certain issues. This June, within three days the National Assembly created a new law criminalizing denial of the serious crimes Khmer Rouge regime, (Greenwood). In contrast, 127

132 passage of the Anti-Corruption law had taken the Royal Government for years and significant international pressure. Civil society and the government have similar goals: to help Cambodia to become a democratic country enshrined in the Constitution of the Kingdom of Cambodia. Therefore civil society needs help and cooperation from the government in order to achieve those goals. This includes stopping violence, intimidation, and creating space for opposition and civil society to operate freely. This is necessary for real democracy in Cambodia. Sadly, Cambodian civil society has witnessed increasingly hostile attitudes from the government who now incorrectly assume that most civil society is linked with the opposition or are opposed to the government s development policies. The Royal Government of Cambodia should be open minded and willing to receive requests and feedback from the public. They must be willing to listen in order to improve the country and build on development work that has taken place thus far; Cambodian people respect their top leaders greatly, and therefore leaders have no reason to condemn the public or restrict the freedom of speech enshrined in the Constitution (LICADHO). Being in senior leadership for more than 10 years in any country is unhealthy. Opinions and ideas shift during such a long period of time and the leader may no longer understand the people under his leadership. When one person stays in power for such a long time, structures are created to benefit one interest group and create partisan connection and nepotism and leaders often become intolerant towards challengers or activists. Leaders can become less inclined to accept feedback from their people. Cambodia has seen leaders as personal power at the expense of poorer Cambodians. When the public witnesses social injustice such as corruption, land grabbing, restrictions on freedom of speech, assembly and expression, environmental damage, they must exercise their rights to hold their leaders responsible for these systematic abuses. In the past, civil war, huge violence and killing were used as tools for resolving differences and injustice. Cambodia must ensure that civil war is never used again as a way restore a fragile peace. Key Recommendations 1. Khmer people, peace activists and civil society need to collaborate with the authorities to work for the national peace and security. We urge the government leaders to support civil society contributions to the development of the country towards a real pluralistic democracy in accordance with the Cambodian constitution. 2. We urge the government to stop harassing human rights activists and provide them space for freedom of expression and their endeavors to fight against social injustice. 3. We urge the government to amend the Constitution to institute term limits for the office of the Prime Minister in order to increase diversity among the leadership and prevent partisan politics, so that peace and security will be strengthened in the country. This would also prevent the opposition from the perceived need to resort to violence in an effort to voice their concerns. 128

133 The citizen voters should exercise their rights to vote for their leaders in a peaceful, transparent and legitimate electoral process. 4. We also urge the government to utilize the national assemble inscribed in the Constitution to ensure political dialogue and debate in regard with national interests such as border issue, land concession, development plan, and national incomes and budgets etc. B. Border Disputes and Tension with Cambodia s Regional Neighbors Cambodia has a long history of conflicts over territory with its neighboring countries especially Thailand and Vietnam. The disputes badly affect livelihoods, especially for those who are living along the borders. For instance, the Cambodian-Thai dispute over Preah Vihear temple resulted in the injury and death of many people both civilian and military (Osborne 2011) and tens of houses were burnt. Many people and livestock were internally displaced and children were not able to go to school during the clash and instability in that border area. There is also a tension between Cambodian people and the Vietnamese government around the issue of the Sea Islands, particularly Koh Tral which is still ongoing accusation by the opposition party over the land encroached by Vietnam due to the unclear border agreement between the two countries. Cambodian people are not clear about the Vietnamese government s policy and implementation of the Paris Peace Accord in 1991 (concerning the sovereignty, independence, territorial integrity, and inviolability, neutrality and national unity of Cambodia) and the extensional border agreement between Cambodia and Vietnam. There are a lot of accusations between the people and the government in this regard. The resolution process of border disputes is not clear for some Cambodian people including political parties, especially surrounding the question of which mechanism Cambodia should use to deal with border disputes with its neighbors. Key Recommendations 5. The government should use proper mechanisms such as International Court of Justice (ICJ) and Paris Peace Agreement to deal with the border disputes including demarcation among neighboring countries especially Thailand and Vietnam where it is necessary, so therefore it can protect the national interests of the Cambodian public. 6. The governments of the involved parties should build good relationship and cooperation among themselves and promote regional peacebuilding among peoples of those countries. 7. Both governments (Cambodia and Vietnam; and Cambodia and Thailand) should work to inform people living near the disputed border areas about the current situation and the mechanisms they are using to resolve the dispute. 8. We urge Cambodian government as well as all ASEAN member states to promote the rights to peace and respect for human rights by creating safe democratic sphere for all people. 9. We would like to call for both Cambodian government and ASEAN member states to strongly support and invest in capacity building and fund the strengthening of the ASEAN Institute for 129

134 Peace and Reconciliation. This Institute plays an important role in establishing peace and reconciliation mechanisms and in solving conflicts within the ASEAN community. C. Land Disputes One of Cambodia s most pervasive human rights questions today is the issue of land rights. In particular, in both urban and provincial areas, marked out for appropriation by private companies for agricultural businesses or housing developments, land has been taken without the proper consultations or prior informed consent of the local community who are occupying the land prior to any forced eviction. This land grabbing has led to relocation of poor families and communities to remote areas that lack basic infrastructure and resources. Therefore these evictees feel the need to respond to the government s action by holding protests and peaceful marches demanding fair compensations from the companies and fair resolution from the authorities. The government has responded to the protests by imprisoning some the more outspoken activists, for instance, the women protesting the forced evictions from the Boeung Kak Lake area in Phnom Penh (Amnesty International 2012). Cambodian Prime Minister has also taken up the cause, enlisting some two thousand youth volunteers to conduct a land-titling program to measure the land of farmers throughout the country, so that titles may be granted to truly reflect the amount of land they own. While the program is a step forward, its implementation is very flawed, and it has come under great scrutiny and criticism by human rights organizations and nongovernmental organizations in the country (Chen 2013). As long as Cambodians do not have legal titles to their land, and are forcibly evicted from their homes without notice or compensation, we do not believe the government is honoring the statues laid out in the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Cambodia is a party. Furthermore, dispossessing poor communities has led to an increase in poverty among these communities as they no longer have access to basic goods and services. This land grabbing also foments social unrest as evicted communities in order to be heard, must seek the only avenue available to them, such as demonstrations and protests, to which government forces react unjustly with violence, unfounded imprisonment and unfair trials. Key Recommendations: 10. The government must create a comprehensive, transparent and equitable land titling program that does not exclude minorities. We request such a program to be monitored by local and international NGOs to ensure it is indiscriminately implemented. 11. The government should compel private companies interested in purchasing land that is inhabited by Cambodians, to follow prior informed consent with the local communities and to reach a consensus with them with regards to compensation. These companies must respect community refusal to sell/move off their land, as the case may be. 12. That laws enacted would allow for the fair resolution of grievances and complaints brought forward by communities who feel that they were unjustly evicted from their land. 130

135 13. We insist upon the immediate and adequate compensation for communities that have already been displaced as a result of the forced evictions that have already transpired. 14. We also urge the government to stop the regimentation of youth involved in the government s land title registration program where volunteers are given military clothing which they wear when interacting with communities. This practice creates intimidation and biases communities, while also creating fears of civil war. 15. We reiterate the urgent and necessary reform of the legal and judicial system to gain more trust and confidence among the people and use the state s mechanisms to settle the issues of conflict, land and violence effectively. Case by case conflict resolution mechanism will not lead to good governance and sustainable peace D. Public Use of Provocative Language Leaders of the main political parties have taken to referencing the possibility of civil war in their speeches to supporters in the run up of National Elections held on July 28th Just ahead of the election, Prime Minister has begun to use provocative language by warning citizens that a victory by the opposition would lead to civil war and an outbreak of national violence (Vannarin 2013). Similarly opposition leaders, in response to the eviction of twenty-seven parliamentarians from the national assembly due to constitutional technicalities, also stated that the action created the pre-conditions for civil war (Vannarin 2013). Talk of civil war in the run-up to a hotly contested election only serves to instigate fear and tension in the country. Both the ruling government and opposition leaders are utilizing language that will in turn create painful memories for the Cambodian people. We do not believe that such rhetoric is useful, relevant or in the interests of promoting a free and fair election or national peace. Key Recommendations: 16. We recommend that leaders desist from comparing political tension, which reflects a democratic transition in any country, to a symptom of civil war. 17. We recommend that relevant electoral authorities, particularly the National Election Committee (NEC) urge politicians to desist from using the fear of violence as a campaign strategy. E. Fear of the Return of Khmer Rouge Millions of victim-survivors of the Khmer Rouge are still traumatized. They are living in a situation of fear and threats, especially because political parties continue to use the threat of civil unrest for their political gains. While Cambodia is in transition to a more democratic pluralism regime, victim and survivors are particularly vulnerable to this type of political intimidation. Although the Extraordinary Chambers in the Courts of Cambodia (ECCC) is in fact established to bring justice, historical facts and reconciliation for Cambodian people, the court s process has been slow and Cases 003 and 004 are still unclear. There are so many challenges in bringing the top leaders of the Khmer Rouge to justice. This is due to political interference and unwillingness from the current government in finding justice and accountability, which adds to the uncertainty that victim-survivors face in Cambodia today. 131

136 Cambodian people, both younger and older generations, want to know why Cambodians killed their own people. Most of the post-war generation cannot believe what happened during the Khmer Rouge period. Some of them want to take revenge against former Khmer Rouge cadres or perpetrators while others are simply curious to learn what happened. Still others feel that foreigners were significantly involved in the killing (Burcu Münyas 2005 and Youk Chang).Young people have learned varied historical narratives of the Khmer Rouge era based on their parent s experiences. For example, the children of former Khmer Rouge cadres learn from their parents about the experience of war and their dedication for sovereignty of the country s territory and how they still consider Pol Pot and other leaders of Khmer Rouge as their heroes. With this conflict of narratives, we need to create a safe space for dialogue across generations to allow victim-survivors, former Khmer Rouge cadres, and different groups of the post war generation, to develop a greater understanding and build relationships in order to move forward. The Law on Denial of Serious Crimes Committed During the period of Democratic Kampuchea was just recently passed law on 07 June 2013 by the ruling party s members of parliament. This creates concerns of intimidation and violation of people s freedom of expression in Cambodian society (Amnesty International 2013). This law is aimed at discouraging people from engaging in open dialogue and telling the truth about the Khmer Rouge past as many fears being prosecuted by this new law. Cambodian people want to learn in a healthy way through understanding the root causes of the atrocities and avoid similar circumstances from happening again. Without holistic learning about the Khmer Rouge past, elements of the Khmer Rouge regime can return in Cambodian society in other forms such as forced eviction, human rights violations, illegal killings and harassments. We have to have real learning from our past lessons of conflicts and mistakes to avoid repetition. Key Recommendations 18. The government should cooperate with United Nations to fully support the trials process by the ECCC with regard to cases 003 and 004 successfully through political, technical, and financial means. 19. The government should make an amendment to the Khmer Rouge denial law after the end of the ECCC process to ensure the freedom of expression, especially when it deals with historical facts of the Khmer Rouge regime and the rights to truth, and justice. The government should collaborate with civil society by providing space for dialogues among Cambodian people across generations to prevent the recurrence of the atrocities of the Khmer Rouge. Khmer schools should include a fair and balance history of the Khmer Rouge. 20. All political parties should not politicize history of Khmer Rouge for their political gains. Rather, parties should communicate with Cambodian people who suffered suppression and civil war and work in harmony to ensure that there will be no more gross human rights violation, killing and civil war in Cambodia again. 132

137 References: Amnesty International Open Letter: Freedom of Expression and the Proposed New Law to Criminalize Denial of Crimes Committed by the Khmer Rouge Youk Chang. Why the Khmer Rouge Tribunal Matters to the Cambodian Country: Justice for the Future, Not the Victims by, Director of Documentation Center of Cambodia Burcu Münyas. A Study on Genocide in the Mind of the Cambodian Youth, in Phnom Penh, Cambodia 2005 Ernst Jürgensen. Engagement by non-governmental organizations in creating socio-political change in a Cambodian context, February 2013 ADHOC. Killing of Mr. Chut Wutty - ADHOC Report. May 4, (accessed June 20, 2013). Statement: Human Rights Defenders and Activists Under Fire in Cambodia. April 30, (accessed June 20, 2013). AFP. Cambodia outlaws denial of Khmer Rouge atrocities. June 7, (accessed June 22, 2013). Cambodia outlaws denial of Khmer Rouge Atrocities. June 8, /world/ /cambodia-outlaws-denial-of-khmer-rouge-atrocities/ (accessed June 22, 2013). Cambodians hold mass protest over Khmer Rouge prison denial. June 9, (accessed June 22, 2013). Agence France Presse. "Vietnam and Cambodia fail to finalise border dispute protocol." November 27, (accessed June 22, 2013). Amnesty International. Cambodia Annual Report (accessed June 22, 2013). "Cambodia: Imprisoned for speaking out." Amnesty International, Demand Dignity (accessed June 20, 2013). Cambodia: Release Mother Imprisoned for Housing Rights Activism. June 3, (accessed June 20, 2013). "Open Letter: Freedom of expression and the proposed law to criminalize denial of crimes committed by the Khmer Rouge." Amnesty International. June 7, (accessed June 22, 2013). Booty, Harry. "To What Extent was the 1979 Sino-Vietnamese Border War about Cambodia?" e- International Relations. September 21, (accessed June 22, 2013). Cheang, Sopheng. Cambodia PM Seeks Law to Punish Khmer Rouge Denial. May 27, (accessed June 22, 2013). Chen, Dene-Hern. The Cambodia Daily, HRW Says Hun Sen s Land-Titling Program Needs Reform. June 14, (accessed June 20, 2013). CLC Asia. "The struggle between Thailand and Cambodia over oil and gas resources." CLC Asia. September 16, (accessed June 22, 2013). Danlu, Tang. "Cambodia, Thailand shall boost trade as border tension eases: Hun Sen." Xinhuanet. April 9, (accessed June 22, 2013). 133

138 Eads, Brian. Youk Chhang's Journey to Justice. n.d. (accessed June 22, 2013). Federal Research Division of the Library of Congress. Cambodia: Khmer-Vietnamese Border Tensions. as of (accessed June 22, 2013). Gargasan, Merekam. "Thailand-Cambodia Border Dispute: It s all about the oil." January 18, (accessed June 2013, 2013). Greenwood, Faine. "Cambodia Passes Law Banning Genocide Denial." Global Post. June 7, (accessed June 20, 2013). Human Rights Watch. Cambodia: Land Titling Campaign Open to Abuse. June 12, (accessed June 22, 2013). Hyde, Jennifer. 'Killing fields' survivor documents Cambodian genocide. December 10, (accessed June 22, 2013). Kurczy, Stephen. "Cambodia, Vietnam re-affirm their vows." Asia Times Online. April 23, (accessed June 22, 2013). LICHADO. The Illusion of Democracy. Phnom Penh: LICHADO, Osborne, Milton. "Preah Vihear: the Thai-Cambodia temple dispute." Open Democracy. February 8, (accessed June 22, 2013). Patrick Winn, Amy Silverstein. "UN court hears Thai-Cambodia dispute." Global Post. April 16, (accessed June 22, 2013). Schearf, Daniel. "Thai-Cambodian Border Dispute Fueled by Nationalism, Politics." Voa Cambodia. May 10, (accessed June 22, 2013). Shawcross, William. The Return of the Khmer Rouge. July 17, (accessed June 22, 2013). Vannarin, Neou. The Cambodia Daily; Hun Sen Says Civil War Would Be Opposition s Fault. June 11, (accessed June 20, 2013). The Cambodia Daily; Rainsy Says Climate in Cambodia Is Ripe for Civil War. June 10, (accessed June 20, 2013). Xinhuanet. Khmer Rouge regime will return if opposition party wins July's polls: PM. May 22, (accessed June 22, 2013). USIP Library, Agreements on a Comprehensive Political Settlement of the Cambodia Conflict: Paris, 23 October pdf February

139 14. MINORITY RIGHTS ISSUE Khmer Kampuchea Krom for Human Rights and Development Association 1. #67, Street 309, (Borey Prey Nokor Community), Phnom Penh Thmey Commune, Phnom Penh Tel: / office@kkkhrda.org Website: Universal Periodic Review: For Cambodia Submit to the UN Office of the High Commissioner for Human Rights KKKS Background: The Secretariat of Khmer Kampuchea Krom Organizations and Associations (KKKS) is a legitimate unification of eleven Khmer Krom organizations-associations, recognized by the Cambodian government. The KKKS, established on November 13, 2013, is an independent coalition, nongovernmental organization and unaffiliated with any political party. It was founded based on the initiative from representatives of the involved delegations, with the goal of promoting and defending the rights of the Khmer Krom and democracy. Although each association has its own strategies, based on the consciousness of human rights and democracy, they came up with a joint policy of common vision: the Khmer Krom with harmony, liberty, democracy and respected and protected rights. Cambodia Constitution, Article 31, chapter III, notes, Khmer citizens residing abroad enjoy the protection of the State. All Khmer people, whether residing in Cambodia or Kampuchea Krom are under the protection of the constitution. Although the laws are only effective within Cambodia, human rights is an international issue. The Office of the United Nations High Commissioner for Human Rights has not established its office in Vietnam yet, thus making it difficult to monitor, promote and protect human rights in that country. However, many Khmer Krom people, now finding themselves due to historical wrongs by colonial powers, in Vietnam can flee persecution and share their stories directly to our community and the OHCHR in Cambodia. The whole information about human rights development in Kampuchea Krom, which the KKKS received, was prudently discussed during the workshop Freedom of Expression and Information Dissemination on March 25, 2013 and the press conference on the Vietnamese government s restriction over freedom of movement of the Khmer Krom on April 21, We have compiled this stakeholder submission from these events and person testimonies from Khmer Krom. Following is completed information explained in detail: The Situation of the Khmer Krom in Cambodia: Due to serious oppression from the Vietnamese authority, some of the Khmer Krom left their fatherland for Cambodia with the hope of building a better and peaceful life. However, their hope was shattered as local people and official authorities considered them illegal immigrants. The Cambodian government has never paid any attention to practical difficulties the Khmer Krom facing, such as living in anarchic areas, lacking access to agricultural land, and earning a substantive living. The problems of domestic violence, communal disputes and the lack of consolidation also occur. High rate of illiteracy and children abandon school are on the rise. Many Khmer Krom find themselves facing structural discrimination with state practices and policies while also having 135

140 challenges in communities and cities they migrate to. These problems will be shown in detail as follows: Deprivation of Identity: Identity is a contentious issue, since local people and official authorities are regarding the Khmer Krom as illegal immigrants. They are still facing practical difficulties in trying to access the benefits of their Cambodian citizenship by applying for citizenship identity cards, birth certificates, and relevant paperwork. There is an increasing trend of Khmer Krom being asked by the authorities, who are responsible for issuing identity cards, to change their family background and their registered place of birth to a location in Cambodia. Khmer Krom are honest people and don't want to deny their true identity and participate in a corruption process of lying about their origins just to receive basic benefits entitled by law. This practice, which shows a serious violation of human rights and discrimination against race, is against the laws and illegally deprives Khmer Krom individuals of their identity. Temporary Sheltering: According to official data, most of the Khmer Krom arrived in Cambodia in the 1980s and 90s. Unable to receive land distribution from the government, they built their small thatched huts, with the size of 3-4 meters and small columns, which serve as living quarters for several family members along canal dikes or reservoir. They are facing imminent evictions, as the occupied land plots are slated for development. That will put them into the state of solitude and homelessness, and if they return to homeland, they will face harsh treatment from the Vietnamese government. The trend of land grabbing taking place in Cambodia is alarming with many Khmer Krom finding themselves without access to the right to housing. Substantive Living: Living in rural and remote areas requires land for agricultural, and the lack of access to arable land makes their life tougher. The Khmer Krom supports their livelihood by transplanting and harvesting rice for the rich during growing seasons. Some choose to fulfill their right to food by illegal fishing, while others transport tax evasion goods across borders. They borrow money from the rich when summer arrives and rely on it to live through the dry season. If the Khmer Krom were able to receive basic rights, they would not be forced to endure such practices and also not be forced to leave their family for neighbor countries seeking work. Domestic Violence and the Lack of Consolidation: Domestic abuses are common within Khmer Krom families, and those abuses are often caused by frustration associated with money, social problems and unemployment. Domestic violence is a major cause of divorces and damages of properties. There must be a state-wide campaign beyond education with resources to connect the challenges and provide opportunity to end cycle of violence. Plagued by poverty, some families only think about their own benefits without caring about mutual support or social insecurity. As a result, consolidation within community is feeble. Education: The Khmer Krom have little access to education and learning their mother tongue is a great hurdle. There is no official school in Vietnam teaching Khmer language and classes teaching this language are always kept covert and out of authority s surveillance. Hence, the illiteracy rate is high and 95 % of women cannot read their mother tongue. In Cambodia, the majority of Khmer Krom families are unable to afford their children s basic education, because they possess no required documents such as birth certificates, identity cards etc. Some children abandon school during grade 4-5 because of financial difficulty and they have to work with their parents. There should be language schools to assist the growing number of Khmer Krom fleeing Vietnam to be able to live life of dignity in Cambodia. 136

141 Participation in Politics: The right of Khmer Krom individuals to organize peaceful meetings, political campaigns, workshops or educational courses is regularly harassed by local authorities. Nearly all activities involved with freedom of assembly came under observation and intimidation from police and authorities. Conclusion: The KKKS concluded that those violations occurred because the Khmer Krom haven t executed their rights: The Khmer Krom haven t been well-informed of information about the rights of indigenous peoples, development plans from government, educational opportunities and general information about situations of social and cultural affairs. The lack of access to information stripped Khmer Krom Freedom of expression, the right to oppose and propose any plan affecting interest and identity of the Khmer Krom. The important principle of Free, Prior and Informed Consent must be active part of the Cambodia government in its interaction with Khmer Krom. The right of movement is being infringed upon by the authority. Those human rights violations are against stipulated laws: In the royal degree from the late king Norodom Sihanouk declared all Khmer Krom individuals, regardless of their origins and have either Khmer father or mother, will be legally considered Cambodian citizens when they arrive Cambodia. As noted in the Cambodia Constitution as well as international human rights instruments, Khmer Krom have basic civil, political, economic, social, cultural and collective rights. Article 31 of the Constitution of Cambodia stipulates every Khmer citizen shall be equal before the law, enjoying the same rights, freedom and fulfilling the same obligations regardless of race, color, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status. Article 3 of the nationality laws mentioned that Khmer citizens who are living in foreign countries should be protected by the State through all diplomacy means. Article 4 also apply Khmer nationality to every Khmer individual regardless of the place of birth and any illegitimate child who is born from and recognized by a parent (father or mother) who has Khmer nationality. In the Universal Declaration of Human Rights, Article 12 states that "No one is subjected to arbitrary interference in the private housing in personal, family, or correspondence, or attacks on the honor and its name. Every person has the right to protection against these interference or attacks Article 13 states that "Everyone has the right to process for free and have the right to residence in the border of each country." "Every person has the right to leave the country, including its and the right to return to their homeland" Article 17 states that "Everyone has the right to the owners whether individual or collective. Their property was confiscated by the action" Article 18 and 19 relate to the executive and respect for the rights and religion, freedom of expression and access information. Learning their culture and literature. The use of these rights 137

142 without interference, as well as the freedom to receive and disseminate information and ideas through any media system and free of the border. The issuing of the United Nations Declaration on the Rights of Indigenous Peoples explains and deepens the understanding of human rights. Article 11 states that "Ethnic execute permissions and lively tradition and their cultural habits, including the right to protect and development of its cultural identity from the past, present and future, such as traditional area and the history of traditional style objects from the visual arts festival technology art performance and literature " Article 12 states that "Indigenous peoples show executive development and traditional teaching Their religious habits festival and rights protected and the right to private use and object management for the funeral." 8. Recommendations 8.1 The Royal Government of Cambodia Cambodian people and the authorities should stop the confusion on Khmer Krom people and nondiscrimination on Khmer Krom people. Cambodian Government must recognize Khmer-Krom as refugees when they arrived at Cambodia because they flee from Vietnam seeking for refugee status. If Cambodia tactically considers Khmer- Krom refugees as Cambodia citizen, then the world will not know that Khmer-Krom escaped Vietnam because of the human rights violations committed by Vietnamese government. If Cambodian government truly considers Khmer-Krom living in Vietnam as Cambodian Citizen, then the Cambodian Citizen must work with Vietnamese government to provide Khmer-Krom special status to travel freely between Vietnam and Cambodia. Provide Khmer-Krom the Cambodian identification card and allow Khmer-Krom to have a right to vote in Cambodia. Royal Government of Cambodia, the allies should closely cooperate and compromise with Vietnam to stop the human rights violation on Khmer krom people. Royal Government of Cambodia should encourage its Embassy in Vietnam to take measures to protect the rights and safety Krom. Royal Government of Cambodia Should be warm and care for Khmer Krom people on daily living who are living in the Kingdom of Cambodia and social concessions for whom at local living in temporary construction. Royal Government of Cambodia must stop all restrictions on the Edge of when they use the right to freedom of gathering and performance. 8.2 International organizations and the United Nations International organizations to focus on areas of human rights, compassion interesting situation Krom rights. Donor countries please check on the implementation of the human rights in ASEAN region specifically the government of Cambodia and put pressure on the Cambodian government to fully respect human rights. The Office of the High Commissioner for Human Rights and other international organizations should make sure their headquarter offices in Phnom Penh to check and monitoring respect for human rights in Vietnam. The UN agencies, programs and funds should connect the core violations of human rights in Vietnam and its rippling effect in Cambodia. 138

143 15. LGBTIQ ISSUE JOINT SUBMISSION TO HUMAN RIGHTS COUNCIL SUBMITTED BY: Rainbow Community Kampuchea (RoCK), Cambodian People Living with HIV/AIDs Network (CPN + ), Women Network for Unity (WNU), Community Legal Service (CLS) and CamASEAN s Youth Future (CamASEAN) Contact Person: Mr. Srun Srorn, RoCK s Facilitator Website: ssrorn09@gmail.com Address: # 3-4 Street 339, Tuol Kork, Sangkat Boueng Kak 1, Khan Tuol Kork, Cambodia 139

144 LGBT Joint Submission to the Universal Periodic Review of the United Nations Human Rights Council Background: Discrimination, Exclusion and Stigma have major impacts on lives of people who are openly lesbian, gay, bi-sexual and transgender (LGBT); the traditional safety net the family, becomes an oppressor so LGBT turn to friends more often for support during critical shocks. Male to Female Transgender in appearance (and behavior) seem more likely to be discriminated compared to lesbians and gays, and report higher rates of exclusion from schooling, education, certain types of jobs, being subject to police harassment and arbitrary arrest and detention and association with having HIV. They are frequently pre-judged as criminals, gang members, thieves or drug users. Social Exclusion on the basis of gender identity and sexual orientation (SOGI) is complex and may not be readily acknowledged by authorities. Other factors that can influence exclusion are poverty, illiteracy, lack of awareness about social protection mechanisms and how these can be accessed, some religious practices, cultural norms about males and females, husbands and wives, and families, and type of occupation (such as sex work); however SOGI-based exclusion appears to be a major cross-cutting feature that cannot be disregarded. Many LGBT are mobile and even while living together with a partner in a stable relationship, they are not officially and legally recognized as partners, a husband-wife team, a couple, or as a family. In addition, Rape and violence of female and transgender entertainment and sex workers in Phnom Penh is clearly driven by stigma and social prejudices against. 1 While this goes some way to explain alarming incidence of rape, sexual violence and harassment of sex workers, it also extends to LGBT and sex workers ability to access health services and their interactions with health care practitioners. 1. Introduction While special vulnerable groups have been described in the National Social Protection Strategy (NSPS) , it is likely that persons who do not conform to usual gender norms (such as effeminate, homosexual males, masculine females, transgender persons, etc.) are subject to various forms of exclusion, stigma and discrimination, which in turn exacerbate poverty and vulnerability. The expression of gender identity is an innate characteristic cutting across all categories, and exclusion on the basis of gender identity can seriously affect human capital development and potential. For example, children who are born and raised as male but who might behave as females, are subject to teasing and ridicule at home and in school, and may drop out earlier. Females who are lesbian are subject to rape and violence and forced marriages. A transgender, who is HIV positive, is even subject to more stigma than HIV positive people who are not transgendered in their appearance and expression. Transgender people also do not seem to be included in programs that specify sex of beneficiaries as either male or female. Thus the obvert expression of gender characteristics that are opposite to the sex or gender assigned at birth tends to be a major source of exclusion and discrimination. 1 See Jenkins, above n

145 While Cambodia is classified as a Neutral 2 country in terms of its written policies on sexual diversity, findings from several reports 3 indicate that there is a significant degree of stigma and discrimination on Cambodians who may be gay, lesbian or transgendered. LGBT report being verbally abused, beaten up, and excluded from school activities, family gatherings, and work opportunities. This rejection and exclusion leads to people leaving schools, families and hometowns at a relatively young age, thus eliminating a valuable source of social support: family and relatives. The lack of education and suitable work opportunities, coupled with discriminatory attitudes of family, teachers, local leaders and law enforcers limits options for employment. In some health care settings in Cambodia, Gays, MSM and Transgender have experienced varying degrees of stigma and exclusion from health care professionals and other clinic staff. While health authorities maintain that the discrimination comes from within the group itself (i.e., the health providers do not discriminate, but they (MSM and Transgender) exclude themselves from the health services ), it may not be apparent to the authorities that this is in part due to certain attitudes in providers, which can only be felt by clients. Since the past experiences of these groups are one of exclusion and discrimination, it may be difficult to expect anything else. Thus, LGBT persons prefer to lie or hide about their sexuality, a phenomenon that non-lgbt persons have generally little, if any, understanding of. Gender Identity is more complicated. The definition used is adapted from the landmark document, the Yogyakarta Principles (2007), which outlines the application of international human rights law in relation to sexual orientation and gender identity. In the Yogyakarta principles 4, Gender Identity is understood to refer to each person s deeply felt internal and individual experience of gender, which may or may not correspond to the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms. Sexual Orientation is understood to refer to each person s capacity for profound emotional, affection and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, or the same gender or more than one gender. There were two ways of categorization: the primary one was by self-identification, where the respondent said, I am: (gay, lesbian, kteuy, MSM, LG, LB, LT, Sim Pi, Sim Bi, bros slan boros, srey sros, MSM long hair, MSM short hair, etc.). Lesbians were identified as women who preferred to have emotional, affectionate and sexual attraction primarily to other women. Gays (male) were understood to be men who preferred to have emotional, sexual, and affectionate attraction to other men or to others like themselves. The Male transgender was understood to be someone who may have been born or raised a male, but who felt that they had been born into the wrong body, and felt and acted like women, and preferring emotional and sexual relations primarily with men. One of the helpful questions to ask in this regard, was Who (or what type of person) do you love? Please describe this person. The researchers did not specifically ask Cambodian laws and the constitution does not prohibit homosexuality, neither is it recognized, condoned or punished. (Caceres et al) These reports include the following: Coming Out in the Kingdom: Lesbian, Gay, Bisexual and Transgender people in Cambodia (CCHR, December 2010) and the Report card on HIV Prevention for MSM and Transgender persons in Cambodia (RHAC, September 2011) The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual orientation and Gender Identity were developed by a distinguished group of human rights experts from 25 countries. The aim was to develop a set of international legal principles on the application of international law to human rights violations based on sexual orientation and gender identity to bring greater clarity and coherence to States human rights obligations. The principles were adopted following the expert s meeting at Gadjah Mada University in Yogyakarta, Indonesia from 6 to 9 November

146 about Bisexuality, which is the capacity to form intimate physical, emotional and sexual relations with persons of similar, or different, sex than your own. However, in the survey, several people referred to themselves as Sim-pi, literally, two SIM cards and indicating that they were attracted to, and had sex with, people of both sexes. For purposes of consistency the acronym LGBT is used since this is globally recognized. A few of transgender were waiting for client along the street near Watphnom, one among those has been arrested by polices. During arresting, one police (nick name of 33) has beaten her on face made her nose bleeding. One day after she got releases from social affairs department she got support to file complain against that police at the police post. During case report she got verbal threaten by other police that he will sued her back about deformation case as she report about his name who were beaten but he did not act against her at all. After that she was very afraid and said sorry, signed on complain letter that she agreed to withhold the case. Arrests have been associated with reports of rape and assaults by police and guards at detention centers and bribes. Police behaviour in respect of gender based violence Phnom Penh has been reported internationally. 5 Convictions of police in respect of gender based violence are rare and non-existent in respect of assaults on sex workers. People, particularly those living with HIV, cannot maintain either physical or psychological health if they are subject to, or in fear of, violence and detention. Not only have a significant number of rapes in detention been reported but a defining feature of these attacks is that sex workers are raped by multiple men at the same time. 6 The Cambodian National AIDS Authority and UNAIDS, among others, have expressed concern that enforcement of the LTSE is undermining HIV prevention efforts.7 This includes (but is not limited to) condoms being banned from sex venues and sex workers avoiding carrying them in public for fear of arrest. It has also meant that the sex industry has shifted to places that are more hidden and therefore more dangerous or more protected from authorities, which usually means more exploitative.8 Many women and girls are victims of exploitation and trafficking which gives rise to a range of potential claims for compensation and costs and prosecutions. According to WNU information about legal rights, particularly of migrants, is very poor across all sections of the entertainment and sex industries in Phnom Penh. All genders are vulnerable to gangsters and exploitative employers, landlords and agents. MSM and transgenders have specific issues, often linked to violence and access to HIV or drug treatment. Legitimate law enforcement to locate abused children or adults held against their will is hampered by the hidden and dispersed nature of the entertainment industry in Phnom Penh. 2. Impact of Exclusion, Discrimination and Gender base violent It is clear that the exclusion and discrimination have major impacts on the lives of lesbian, gay and transgender and sex workers in Cambodia. This has resulted in the following:! Dropping out of school earlier, leaving Home and Family/ Kick out of the house! Unable to find regular jobs, have less options than others and some are fired from jobs after identifying! Being Ignored in the community, isolated, depression, sadness and lonely Robert Carmichael, Cambodia Cracks Down on the Sex Industry Jenkins, above n 19, 5. Cacha, 2008 and UNAIDS 2008 Ibid. 142

147 ! Unable to access various services and Unaware of what they are entitled to! Mobility, Move to other areas or other countries, (such as the city and urban areas)! Lack of family and Social support! Rejected from Religion (Esp. Muslim and some Christian Fundamentalist sects) 9! Decide to follow their parents to marry opposite sex and then divorce! Cannot be easy to find the real partners! thief/robber/street people/! Suffer from HIV/AIDs/Drug user as no specific LGBT health services! Be forced to tell lies about yourself or partners! Being sex workers! Rape and violence by police, clients and men pretending to be clients! Motivating and supporting sex workers to report crimes against them! The belief that sex workers are an illegal class of persons! Gender based violence and Domestic violence! Self-harm and commit suicide In the end, Exclusion leads to a loss of valuable human capital, and therefore the potential to contribute to village, commune and national life is decreased. Some will turn to negative coping strategies in order to survive (such as leaving home and school; or joining gangs and engaging in illegal activities like stealing, drug selling, etc.), while others may sell sex, use alcohol and drugs. These coping strategies also have their own effects and impacts on the individual, community and society. 3. Conclusions Various forms of social exclusion are experienced by LGBT in Cambodia. This can range from being ignored, not being allowed to be who I am or to express themselves, not being included or recognized in the community activities and processes, to being insulted, attacked, and more severe forms of both domestic as well as gender-based violence Social Exclusion on the basis of gender identity and sexual orientation is complex and may not be readily acknowledged by authorities. Other factors that influence exclusion are poverty, illiteracy, lack of awareness about social protection mechanisms and how these can be accessed, some religious practices, cultural as well as religious norms about males and females, husbands and wives, and the composition of families, and type of occupation (such as sex work); however it is a major cross-cutting feature that cannot be disregarded. Many LGBT are mobile and even while living together with a partner in a stable relationship, they are not officially and legally recognized as partners, a husband-wife team, a couple, or as a family. Discrimination, Exclusion and Stigma have major impacts on lives of people who are openly LGBT; the Traditional safety net the family, becomes an oppressor so LGBT turn to friends more often for support during critical shocks. Male to Female Transgender in appearance (and behavior) seem more likely to be discriminated compared to lesbians and gays, with higher proportions reporting exclusion from schooling, education, certain types of work or jobs, to being subject to more police harassment and arbitrary 9 According to the FGD with Muslim gay men and one interview with transgender who used to follow Christianity; gay and transgender Muslim youth felt the impact of being doubly discriminated because of their religion as well as their sexual and gender identities. 143

148 arrest and detention, association with having HIV). criminals, gang members, thieves or drug users. They are frequently pre-judged as LGBT can be included in community social protection activities and access to Health Equity Fund (HEF), but they have to be accepted within the community and the village, and exert extra effort, talk to authorities and negotiate, to demand for what is due to them. Others who are ignored or excluded from the start may not even be aware of their rights and entitlements in the village. Some authorities are flexible and find ways to allow inclusion (i.e. recording information on family books as sisters, twins for same-sex partners who live together) but this seems to be dependent on whether the partners are well known and established in the community. Thus, there are gaps in social policy, such as lack of recognition of same-sex partnerships as households and families, even if these same-sex partners have raised children and are performing as a family unit. Policies to support social protection are blind with regards to these types of family arrangements, though it is clear that the policy does not prohibit or discriminate such arrangements. 4. Recommendation! Policy Makers should consider Sexual Orientation and Gender Identity as cross-cutting factors that can consciously or unconsciously influence participation, delivery of social services, access to education, work opportunities and access to justice. Suitable references for this include the Yogyakarta Principles as well as recent UN publications, Born Free and Equal.! Local authorities, policy makers, schools and family need more education on accepting gender-variant children, and in treating people of different sexuality and gender identity equally, and in applying policies and programs in a friendly manner, rather than being hostile! Possible Violations of Human Rights as well as Child Rights may need to be investigated The Rights to Education, Work, Health, Earning a Decent Living, Social Security, Selfexpression, and Participation in community life! When monitoring ID-Poor implementation and selecting beneficiaries, the reasons for excluding households (or partners living together who belong to the same sex) may also need to be monitored and tracked! Organizations working for HIV prevention and Care, the Prevention of Gender Based Violence and Domestic Violence, need to be aware of SOGI and integrate SOGI principles into their work.! Systematic review of the Implementation of the Commune Safety Policy with regards to its inappropriate application! Raise awareness of legal rights and among LGBT and entertainment and sex workers;! Support those affected by the entertainment and sex industry to challenge discriminatory unfair and unlawful treatment! Support efforts by police to respond appropriately to crimes against entertainment workers, transgenders and men who have sex with men regardless of HIV or migration status.! Pursue justice in civil and criminal matters; 144

149 ! Document the abuse of rights and publicize and challenge breaches collectively in a manner that is recognized by the state and its institutions.! Support for informal groups friends association, friendly pagodas/monks, etc. and LGBT associations who can support their members to advocate for their rights! Further research particularly in younger age groups (i.e ) will be useful as this is usually the age when gender orientation and sexuality start to be prominently recognized. At these ages the youth are also more vulnerable to shocks if there is no family support, or schooling. Another subset of the population of LGBT that needs more research are older LGBT (50 years and up) who may have no family or children, or are not entitled to government support through pension funds! Similar research is recommended in other provinces of Cambodia to have a better picture of the patterns and processes of social exclusion on the basis of gender identity from community life and other protection mechanisms (such as pagodas, community savings mechanisms, funeral assistance, major community festivals, village decision making, etc.)! Highlight good practice in Inclusion and in friendly application of policies, (such as experienced in Takeo, and the testimonies of village officials) and share this with other villages. 145

150 16. INDEPENDENCE OF MEDIA REPORTERS WITHOUT BORDERS (RSF) Reporters sans frontières The CAMBODIAN CENTER FOR INDEPENDENT MEDIA (CCIM) UN Human Rights Council Universal Periodic Review 18 th session Written submission by Reporters Without Borders and the Cambodian Center for Independent Media on the state of freedom of expression and access to information in CAMBODIA A - Overview of the press freedom situation and access to information Ranked 143rd out of 179 countries in the 2013 World Press Freedom Index of Reporters Without Borders, Cambodia is at its lowest ranking ever. It fell 26 places from 2012 as a result of the events that occurred in 2012 related to freedom of expression and freedom of the press. In most of the cases, the journalists are summoned to Court according to the penal code instead of the press law. Although freedom of the press is guaranteed under the Article 41 of the Cambodian constitution, it is not a reality in Cambodia. Broadcast media are by far the most popular way through which the majority of Cambodians receive information. All TV stations, most of more than a hundred radio stations and most of the newspapers are controlled by the ruling party, the Cambodian Peoples Party (CPP) or people with close links to it, which guarantees a governmental control over the media and the access to information. As of 2012, all 11 television stations in Cambodia were either owned by the government or a hybrid of government and private (CPP-allied) ownership. Television is overtaking radio as the primary means through which to communicate with the voting public, and is the most tightly controlled medium in the country. Television content is mostly entertainment driven, and because all of the stations are subject to pre-broadcast vetting of news content, they are virtually identical in their presentation of the news. As of 2012, Cambodia had 30 newspapers published on a regular basis, although there are approximately 300 registered (according to the Ministry of Information), many of which have at least partisan ownership by a government party and are used as platforms for spreading propaganda and discrediting the opposition. Overall, print media faces less government restriction than broadcast media because of its limited coverage. As with television, permission to broadcast on radio is granted by the Ministry of Information. Radio is highly regulated in Cambodia but it has greater penetration throughout the country because it is a more accessible and affordable medium for the majority of the population who live in rural areas, especially those with no TV coverage or newspaper distribution. In light of the limited access afforded to opposition political parties on television, radio in Cambodia plays a significant role in providing more equitable and balanced media access for parties other than the CPP. While high costs and lack of computer access and electricity have meant a relatively low penetration rate for the internet in Cambodia (only 4.4% of the population in 2012), it is still an influential medium which has the potential to grow exponentially as access widens and costs fall. With the introduction of wireless broadband services, Internet Service Providers (ISPs) have been quick to invest in the Cambodian market, enabling greater high-speed coverage throughout the country. The Internet holds great potential for dramatically changing the media landscape in 146

151 Cambodia, and to some extent already has. Its increasing influence on the way that news and public opinion is aired is evidenced by the growing number of news websites, blogs and passing social commentary originating from Cambodia that can be found online today. It is a difficult medium to control, though there has been no lacking of trying on the part of the government. B - Escalation of the threats against press freedom and journalists since The main threat against journalists, media workers and press freedom lies in the large collection of law articles that can be used against them as well as a biased justice system. As a result, most of them are afraid to publish any criticism against specific members of the government. Since 2009, the number of cases trying to restrict media freedom has increased has been defined as the worse year for freedom of expression and the media. In 2009, government officials brought a new phase in the politicisation of defamation and disinformation complaints. Hang Chakra, the opposition daily Khmer Machas Srok ( kmsblog.wordpress.com/) editor was jailed for a year after he wrote two articles in April and May 2009 in which he said a Deputy Prime Minister was corrupt. This was a result of an abuse of a law about disinformation that was inherited from the United Nations Transitional Authority in Cambodia (UNTAC). Hang Chakra was released on April 13 th, 2010, after he was pardoned by the late King Father Norodom Sihanouk for Khmer New Year. In a media research published by CCIM on July 2009 and supported by the European Union, the local organization stated that business and political elites in Cambodia have increasingly turned to the Press Law of 1995 and UNTAC criminal code to sue or intimidate journalists, rather than brute force. Under the press law, misinformation is a criminal offense. The new criminal code, which took effect on 10th December 2010, reinforced the already existing restrictions on free expression. For example, article 495 is based on a vague definition of incitement as sharing or exposing the public to speech, writings, drawings or audio-visual telecommunication that could directly result in a crime being committed or in serious social unrest. Defamation and affecting the dignity" of others is also punishable under this article. As a result, the World Food Programme employee Seng Kunnaka was sentenced to a six-month jail sentence and a fine of 1 million riels (250 dollars) by a Phnom Penh court on a charge of criminal incitement for printing an article critical of the government and showing it to workmates. He was convicted under article 495 of this code for sharing an article from the popular news blog KI-Media referring to Prime Minister Hun Sen and several other senior politicians as traitors. His arrest came just days after the prime minister accused the WFP of wrongly claiming that Cambodia faced the possibility of a food shortage became the worse year for freedom of press in the country. On August 9th 2012, Chan Soveth, a Senior investigator at the human rights organization ADHOC, was summoned by Phnom Penh municipal court for allegedly providing assistance to the perpetrator of a crime whilst working with land rights activists in Kratie province. In September 2012, Mam Sonando, owner of Beehive Radio, was sentenced to 20 years imprisonment for allegedly assisting a secessionist movement in Kratie Province. His arrest on July 15, 2012 came shortly after a news report aired on Beehive Radio detailing a complaint lodged with the International Criminal Court accusing the Cambodian government of committing crimes against humanity. Many international groups and leaders campaigned for his release. Following his appeal in March 2013, his sentence was reduced to 5 years and suspended. He was subsequently released after serving 8 months in prison. 147

152 On September 11 th, 2012, Hang Serei Oudom s body was found in the trunk of his abandoned car near a cashew nut plantation in Ratanakiri province. Oudom covered environmental issues for Vorakchun Khmer Daily. Human rights groups including ADHOC were not satisfied with the investigation, which was twice closed by the investigating judge at Ratanakirri Provincial Court despite strong evidence linking King Seanglau, a local military police official, who was implicated in one of Oudom s articles detailing illegal logging published a few days before the murder occurred. Mr Sovannatith, Reporter Team Leader and Assistant to the Vorakchun Khmer Daily s editorin-chief, told VOD staff that Mr Oudom was very happy with his work and aware of the risks involved. Mr Sovannatith is sorry for the loss of his colleague but said he is not afraid to continue reporting about illegal logging in Ratanakiri. In October 2012, RFA reporter Sok Ratha was summoned by Ratanakiri Provincial Court for questioning on charges of incitement to commit a crime. The allegations related to incitement of members of an ethnic minority to engage in violent protests against D.M. Group Corporation in In December 2012, Mr Trang Try, a journalist for the New Decade Newspaper and member of the Khmer Democratic Journalist Association, was arrested by order from Kratie Provincial Court on a charge of extortion. He was arrested after he reported illegal logging to the police. Mr Vichey Anon, a Radio Free Asia (RFA) journalist, was found unconscious the day after reporting Mr Try s arrest. He was found on the road connecting Kratie and Stung Treng provinces. His condition was attributed to a traffic collision. He remains in a coma. C - Respect of Cambodia s implementation of the UN recommendations In December 2009, Cambodia accepted the 91 recommendations made during its first UPR. Reporters Without Borders and CCIM will comment on 5 of them that both organizations are most qualified to comment upon. Recommendation 46 (a) from Switzerland: Ensure that the freedom of expression and of the press guaranteed in the Constitution are effectively respected On October 1 st, 2012, the owner of radio Beehive, Mam Sonando, was found guilty of incitement and insurrection and sentenced to 20 years in jail. This use of the penal code is believed to be a political move to silence him and led to the widespread belief that he was targeted because of his activities. He was released in March 2013 but remains under judicial supervision. According to his lawyer, there was no real argument that could have led to his sentencing. His case and above explanations show evidence that freedom of the press is not a reality in Cambodia. Another one is the censorship of five radio stations by the Ministry of Information to cease their coverage during the Commune elections in June Recommendation 46 (b) from the Czech Republic: review its newly adopted penal code with a view to ensuring its compliance with the permissible limitations to freedom of expression as stated in ICCPR In 2010, when the new penal code was adopted, local organisations denounced the fact that freedom of expression and freedom of the press would be reduced. In a press release published a 148

153 day before its adoption, the Cambodian human rights organisation Licadho warned that any person who criticizes a judicial act or decision aiming to endanger Cambodian institution can be sentenced to up to six months imprisonment and 1 million riel fine under article 523 of the Penal code. As such, a newspaper cannot criticize a decision done by a tribunal for example. The organisation identified eight other articles that reduce the rights to freedom of the press. For CCIM, the widespread practice of self-censorship among Cambodian media professionals is born out of a fear of being prosecuted for criminal offences under the country's penal code for reporting on issues that highlight any controversial activities by the government. This is how the radio Voice of Democracy decided to hire a legal consultation each time it publishes an investigation report. Since 2009, not only the Penal code has not been amended or reviewed. However, it has been used against Mam Sonando to silence him. Recommendation 46 (c) from Israel: take effective measures to ensure the freedom of expression and opinion by amending the press law that allows for a broad interpretation of the vague term humiliation of national institutions and authorizes censorship, the suspension of publishing and imprisonment under the guise of national security and political stability. A press law has been adopted in 1995 by the National Assembly. A number of provisions can be seen as positive for, in theory, it should afford vital protection to those working in the media. However, some of its provisions are imposing restrictions on the content. According to the law, the press shall not publish anything which may affect public order by directly inciting one or more persons to commit violence (article 11), publish or reproduce any information which may affect national security and political stability (article 12), publish or reproduce false information which humiliates or contempt national institutions (article 13) and anything which affects the good customs of society (article 14). None of these notions are explained in the law, which gives the opportunity of a very broad interpretation. As of today, no measure has been taken to amend this law. Moreover, there has been a full confusion as to which law should be applied when a journalist faces defamation charges. For example, article 20 of the press law states that any act committed by employers, editors or journalists that violate[s] the criminal law shall be subjected to punishment according to Criminal law. This reference has not been clarified until today and the adoption of the penal code in 2010 makes it all the more dangerous as stated above and resulted in Hang Chakra s sentence. Recommendation 46 (d) from Mexico: adopt legislative measures necessary so that journalists are not persecuted while exercising their profession and violations of the limits on freedom of expression are not sanctioned criminally Since 2009, no such attempt has been done to ensure journalists safety despite the recent attacks on reporters. While the 2010 penal code can protect media professionals from criminal prosecution related to their work, the press law is still vague and lacks clarification related to the use of the Penal code. From 2010 to 2013, the harassment Map 1 published by the Cambodian Center for Human Rights (CCHR), 85 cases of media harassment including arrests, prevention from entering public events, confiscation or damage of their property, criminal charges and violence were recorded

154 In 2012, at least three journalists were beaten up because of their activity when covering sensitive issues such as illegal logging. One journalist, Heng Serei Oudom, has been found dead in the trunk of his car on 11 September 2012 after he reported about illegal province in the province of Rattanakiri. As evidenced by the recent case of Radio Beehive station owner Mam Sonando s imprisonment, and the numerous journalist deaths in Cambodia over the years, which have gone uninvestigated and unsolved, the dangers of reporting on public issues such as conservation, land rights and employment conditions are still present. Intimidation and threats from the groups in power and with power are commonplace for owners of independent media stations, journalists and reporters who attempt to report news truthfully and impartially. While the government has not been able to take any measure to ensure journalists legal and physical safety, it has received recommendations from the civil society in May 2013 to draft an Access to information law as a guardian for journalism safety. Recommendation 47 from Hungary: Elaborate an action plan for ensuring free access to the electronic media and for liberalizing the electronic media ownership rules Since 2009, CCIM has been stating that as Cambodia establishes closer relations with China, a country known for its draconian control of the Internet through its Great Firewall of China, there is no doubt that the countries will work together on IT and Internet-related issues. Until 2011, Cambodia was regarded as a Digital Democracy because of its lack of web restrictions, especially in comparison with its regional neighbours. Beginning in 2011, however, the government (through the Ministry of Interior) began to block certain websites, particularly social media sites such as blogspot.com and KI-Media. Recent attempts to censor the Internet in Cambodia include a decree issued by the Ministry of Telecommunications in December 2012 stating that "Internet cafes cannot be located within 500 meters of a school or allow their clients to gamble, porn surf, visit websites selling drugs or commit crimes that threaten national security or traditions. As outlined in CCHR s new media report 2, the momentum being gathered by new media such as mobile phones and internet is already ushering in an evolution of the way the media operates in Cambodia, with the hope that it will encourage greater quality independent news reporting and freedom of expression. There are a number of independent Cambodian news websites, many of which use video and radio to spread their information, and which are often connected to social media platforms and websites such as Facebook, Twitter and YouTube, through which they also disseminate their news features. Similarly, many Cambodian radio stations use the Internet to disseminate their programs: Channels like VOD, VOA and Voice of Civil Society (run by COMFREL) and others broadcast online. The Press Law of 1995 mandates that the crime of Defamation be prosecuted under the civil code. This mandate, however, only applies to print media leaving social media users, as well as radio announcers, technically vulnerable to criminal prosecution. An event occurred in January 2013 that rose concerns about the future of Facebook use in the country. In February 2013, Phel Pearun, a teacher living in Phnom Penh, has been summoned to the police after he published a post on Facebook a month before where he was warning of the police practices in a specific district of the capital. After reading the article posted on his Facebook page, the information 2 See CCHR: _of_human_rights_in_cambodia_eng.pdf 150

155 was written with the intention of defaming the police. It affects my reputation and my organization, the deputy police chief told the Cambodia Daily on February 27 th 3. Such consideration over online freedom of expression can be dangerous to protect it. There is one new Facebook user every 2 minutes in Cambodia; this rapidly growing sector represents a lot of opportunities for freedom and access to information in the country. According to the Ministry of Posts and Telecommunications, Cambodia had 2.7 million Internet users as of December That number represents a 60% rise in users over the previous year and 18% of the total population. From , Internet users in Cambodia have increased from 320,000 to over 2 million. D - Independent journalism at stake The gagging of independent media by the government and the use of public services and civil servants for party purposes, criticized by electoral observers, is directly responsible for the lack of genuinely democratic balloting as expected by the people. The government and CPP maintain strong control over the media and do not support freedom of the press in Cambodia. In addition, due to low literacy rates and affordability, only 2 percent of Cambodians, mostly in urban areas, read newspapers, making the captive audience for print media quite small and concentrated. This in turn affects the financial viability of publications which are not politically backed as they struggle to attract commercial funds from advertisers who do not see the value in investing in a medium with limited distributional reach. As a result of the entrenched political influence over the media in Cambodia radio station owners have developed a tendency to always follow government orders and there is still a culture of fear among journalists. Of the 160 radio stations registered with the Ministry of Information (as of 2013), only three could be considered independent CCIM s Sarika FM, the Women s Radio and Radio Beehive. However they, Radio Beehive in particular, face frequent government obstruction, harassment and intimidation. Despite being shut down on a number of occasions, and facing repeated restrictions, Radio Beehive has played an important role in paving the way for independent radio in Cambodia, selling airtime to other parties who are unable to obtain licenses to broadcast. In 2013, the media market in Cambodia is still small and developing. The operational costs for radio, as with other mediums, is high and the opportunity to raise funds commercially through advertising is low, making the market for selling advertising airtime highly competitive. Most Cambodian journalists who have graduated from a media faculty seek jobs with foreign institutions and media outlets which offer higher salaries. As a result, the quality of the content of news reports is still questionable. Moreover, journalists are very often badly paid. This has consequences in the ethics and ability of reporters to stay independent. For example, when press conferences are held by businesses, journalists receive money to attend. Since 2009, efforts are done to improve journalism ethics. The Cambodian Journalists Council for Ethics (CJCE) was created with the aim to establish a mechanism to contribute in strengthening and promoting the professional ethics and responsibilities of people in the media sector, especially the Cambodian journalists through monitoring and helping them correct their media practices among journalists. Monitor, evaluate, and discuss and publications in newspapers and magazines available and inform individuals or institutions about compliance with the Code of Ethics, receive reports from individuals and journalists about possible violations of the Code of Ethics, propose disciplinary actions for journalists who have been deemed to have violated the Code of Ethics such as informing the associations or institutions to which the journalist is a member of, conduct training for journalists on compliance with the Code of Ethics. At present, the CJCE is actively and

156 independently functioning to promote the journalist code of ethics by monitoring five television stations and eight newspapers. E - Discrimination in the access to information Access to information is a fundamental human right and one that is pivotal to the development of Cambodia. The 1993 Cambodian Constitution emphasized the obligation of the government to promote and protect the rights of Cambodian citizens. This right of access to information is further enshrined and expanded upon in the Universal Declaration on Human Rights (UDHR) and the International Covenants of Civil and Political Rights (ICCPR), whose article 19 assures the right of everyone to seek, receive, and impart information and ideas through any media. Almost 20 years after the adoption of the Cambodian Constitution, free access to information in Cambodia is not yet achieved. There is currently an absence of laws and mechanisms to guarantee such a freedom. There is also the lack of knowledge and participation by the public on the issue. Since early 2000, a number of NGOs and advocates have made a push to improve freedom of information, but the commitment of the government and other policy makers has yet to be made. The political environment in Cambodia has played, and continues to play a central role in shaping the country's media landscape. Although technically (according to the Constitution and political framework that was created after the Paris Peace Agreements of 1991) Cambodia is a liberal parliamentary democracy, the party which has ruled for much of the time since - the Cambodian People's Party (CPP) - has established and maintained an authoritarian rule. Access to TV coverage for opposition parties was limited to the Equity News Programme, a joint United Nations Development Programme-National Television of Cambodia project, established to give equitable access to all political parties on the national television channel TVK. This UN-funded program created in 2003 has been permanently halted in November 2012 after it broadcast a feature on government-awarded economic land concessions in Ratanakkiri province s Virachey National Park. On November 11, the hosts of the show were forced to apologize for the feature, after Minister of Environment Mok Mareth had sent a letter to Minister of Information Khieu Kanharith complaining that some images used in the program were archive video footage of forest logging from a different location in Cambodia. The spokesman for the Council of Ministers Phay Siphan said that it was unlikely that TVK would have a similar program. Equity s shows were also one of very few television programs to give airtime to human rights activists and labor unions in the country 4. In its 2009 media research, CCIM states that no ministries employing media relations officers, and few NGOs offering training courses for public relations professionals. In addition, officials rarely hold press conferences, preferring to keep going on in the government secret. While a small progress have been done in terms of institution representation, most journalists are disappointed for in most of the cases, they do not have access to a professional spokesperson. In addition, Cambodia counts at least a dozen minorities with their own dialects. Even if the presence of indigenous people in Cambodia is small compared to its neighboring countries in Southeast Asia, access to information remains a problem for these minorities, which are discriminated. The eastern provinces of Mondulkiri and Ratanakiri are the most concerned by this problem as their region is very difficult to access for telecommunications. Currently, however, the government has granted a number of permits to local and multi-nationals

157 companies for plantations, mining and mining explorations, and other investments, which up to the present the indigenous groups are the ones who carry the burden of the effects of such investments. Among the most common problems the indigenous groups are facing are the: land alienation, displacements of indigenous groups from their residences in their ancestral domain, prohibition from harvesting non-timber forest products, and victimization from violence the companies resorted to keep the indigenous groups away from the land the companies claimed to have legal permit from the government. As a result of the lack of information, the indigenous communities remain powerless in deciding for their communities future. On 23 December 2010, a draft access to information law was submitted to the Cambodian National Assembly by a member of parliament from the opposition Sam Rainsy Party. While there has been pressure on the government to enact the law since the submission, similar drafts have been submitted in the past with no success. However, in response to these efforts, the Ministry of National Assembly and Senate Relation and Inspection (MoNASRI) drafted a policy framework on access to information. To date, the policy framework has been in the hands of this Ministry and has not progressed past the original draft. F - Lack of transparency and fears about the upcoming 2013 National assembly elections With regards to the lack of independence of the media and access to information explained above, Reporters Without Borders and CCIM fear the 2013 National Assembly election will not be fair, as shown in the past. In the run up of the commune elections in 2012, an information ministry ban was put on the retransmission by Cambodian stations of Voice of America and Radio Free Asia programmes on the local elections held throughout Cambodia on 3 rd, June. One station was taken off air for a day while another was forced to broadcast musical programming. The Khmer radio station Voice of Democracy, operated by CCIM, also had to take down its news broadcasts related to the election on June 3 rd. At that time, Chea Sundaneth, executive director of the Women s Media Centre of Cambodia, told Reporters Without Borders she had received a request from the ministry on 31 May to stop broadcasting VOA and RFA programmes, as well as those of Radio France International and Radio Australia, on the organization s radio station. The owner of Angkor Rattha Radio, Keo Rattha, said he had received similar instructions. Equal access to media for all parties was a concern addressed by the Committee for Free and Fair Elections in Cambodia (COMFREL) in their report on the 2012 commune elections, and one that has been raised in the past. According to the political watchdog, the CPP received most of positive broadcast coverage from 18 th May 2012 to 4 th June 2012, while the main opposition parties received less coverage and all negative. During their monitoring period from 1 September 2011 to 15 January 2012, COMFREL also found that CPP received on average more broadcasting time in all TV stations than any other political party. G - Law to condemn denial of the Khmer Rouge Genocide According to several Cambodian journalists, Prime Minister Hun Sen's new law criminalizing denial of the Khmer Rouge genocide is a political move, aimed at the political oponents of the Prime Minister. The bill was drafted within a week and the law passed unanimously during a special session of the country s National Assembly but in the absence of all opposition politicians, who were expelled from parliament after forming a new party, the Cambodia National Rescue party. This new law mandates a jail term of up to two years and fines of $1,000 for anyone convicted of denying the genocide. Two aspects of the law constitute its key problems: a conflict with the principle of the right to free expression and a lack of proportionality between the offence and penalty. 153

158 Combating genocide denial and the hatred it fuels are obviously necessary and praiseworthy goals. But we must stress that they cannot be achieved at the price of violating the constitutional principle of free expression. Turning historical fact into an unassailable dogma imposed by the state opens the door to dangerous excesses. When writing about the historical facts during the period, how will a journalist, blogger or historian decide when a comment begins to constitute a "denial" that is punishable under this law? The penalties envisaged by this law are neither necessary nor proportionate. Envisaging a prison sentence for abusing freedom of expression contravenes Cambodian constitution and the country's international obligations. RECOMMENDATIONS 1. Implement effectively the recommendations accepted in Draft an Access to information law combined with a Freedom of Information law and in consultation with civil society to improve transparency and media professionalism 3. Ensure impunity does not go unpunished and create an independent commission to investigate the case of Heng Serei Oudom as well as journalists and media workers attackers. 4. Open the TV and radio market to independent and community broadcaster, including reviewing the attribution process for radio frequencies for community radios to be able to broadcast. 5. Make the draft of the cyber law available to the public and allow civil society to contribute to its elaboration. 6. Abrogate the law criminalizing denial of the Khmer Rouge genocide. CONTACTS Hélène Sackstein, RWB Representative in Geneva - sackstein@rsf-ch.ch, Tel : Benjamin Ismail, Bureau Asie-Pacifique asie@rsf.org, Clothilde Le Coz, RWB s correspondent in Cambodia c.lecoz@gmail.com (0)

159 17. Multi-Thematic Submissions Submission to the UN s Universal Periodic Review, Cambodia By The Cambodian League for the Promotion and Defense of Human Rights Submission for the UN Universal Periodic Review, Cambodia By Amnesty International and the Cambodian League for the Promotion and Defense of Human Rights (LICADHO) 155

160 Submission to the UN s Universal Periodic Review, Cambodia Introduction & Executive Summary 1. The Cambodian League for the Promotion & Defense of Human Rights (LICADHO) is a Cambodian NGO operating since Employing more than 140 staff, with offices in Phnom Penh and 12 provinces, LICADHO investigates and documents rights violations; provides legal, medical and other assistance to victims and affected communities; conducts human rights education and awareness-raising; and advocates for tangible improvements in rule of law in Cambodia. 2. This submission focuses on a selection of major rights issues in Cambodia, based on LICADHO s experience and knowledge in these areas. The discussion focuses on the implementation of certain recommendations accepted by the government during the first UPR cycle, namely: land rights; military abuses; prison and unlawful detention center conditions; and access to justice/lack of rule of law. This submission covers the past four-and-a-half years. 3. The past four-and-a-half years have seen a sharp deterioration of the human rights landscape in Cambodia. The issuance of long-term large-scale land leases for industrial agriculture has accelerated significantly, before being temporarily suspended in mid- 2012, while the safeguards expressly provided for in Cambodian land laws continue to be almost entirely ignored. Human rights defenders continued to be targeted for harassment, threats, unjustified criminal charges and violence, particularly when their activism relates to land rights. Prison conditions remain extremely poor and in violation of UN Standard Minimum Rules for the Treatment of Prisoners. The government continues to operate unlawful detention centers for the homeless, beggars, the mentally ill, sex workers, drug users and other persons arbitrarily arrested from the streets; detainees are subjected to violence and inhumane living conditions. The nation s corrupt and politically-influenced justice system has prosecuted more and more high-profile government opponents, while State personnel and well-connected individuals have continued to enjoy unfettered impunity. Land Rights and Tenure 1 4. In just the half of the country where LICADHO has offices, land grabbing has affected an estimated 400,000 Cambodians since 2003, creating a growing underclass of landless villagers with no means for self-sustenance. In 2011 alone, 11,000 families were affected. As of May 2013, over 2.2 million hectares have been granted to private firms as long-term leases, mostly through the country s Economic Land Concession (ELC) scheme. The vast majority of ELCs have been issued in violation of Cambodia s As the focus of eleven recommendations, land rights were appropriately the most frequently discussed theme in Cambodia s previous UPR. (See Recommendations 51, 54, and ) 156

161 Land Law and its Subdecree on ELCs. Their requirements regarding size, prior Environmental and Social Impact reports, prior consultations and consent of affected communities, transparency, and fair and adequate compensation have been routinely ignored. Efforts to enforce the requirements in civil lawsuits have been met with years of court inaction or retaliatory criminal charges. 5. In late 2012, the UN Special Rapporteur on the situation of human rights in Cambodia Surya P. Subedi assessed the impact of land concessions in a detailed report, and concluded that [t]here are well documented serious and widespread human rights violations associated with land concessions. The situation is so bad that the Special Rapporteur even questioned the impact of concessions on Cambodia s long-term economic and political stability. 6. The government has asserted Cambodia s land problems have been addressed by the Prime Minister s May 2012 directive suspending new ELCs and mandating a review of existing ELCs. However, the suspension took months to be truly implemented, and the systematic review mandate has been largely ignored. According to the government, any ELC that was in some undefined stage of negotiations prior to the directive may continue through to issuance. Given the lack of transparency surrounding the ELC process, this vague exception has resulted in the continuing issuance of new ELCs. Since the May 7 directive, there have been at least 16 new ELCs granted, totaling well over 80,000 hectares. 7. Similarly, LICADHO is unaware of any systematic review taking place, as required under the directive, and none of the problematic concessions repeatedly detailed in reports have been cancelled. On the contrary, in July 2012, the government published a list of ELCs that revealed that two large concessions that had been revoked in 2011 had actually been reinstated. The Prime Minister did sign a directive reviewing a small handful of concessions. It revoked four ghost concessions, which had appeared abandoned regardless, and left in place a large problematic concession in Prey Lang forest, which is continuing with its improper clearing activities. 8. More importantly, the May 7 directive does nothing to address past violent forced evictions and rights violations. It does not offer compensation or legal remedies to assist the hundreds of families who continue to suffer after losing their homes and/or their farmland to previously awarded concessions. It also does not address ongoing abuses such as exploitative labor conditions, environmental degradation and threats to water supplies, and the refusal to allow residents to free access community forests. Most egregiously, multiple reports have recently confirmed the extensive use of child labor on certain concessions. 9. In response to increasing outcry over land conflicts, and as a pre-election strategy, the Prime Minister announced a new land titling scheme in June 2012, based on the May directive described above. It involves over 2,000 student volunteers dressed in military uniforms, who have since crisscrossed the country to measure land and issue titles. While a push to expedite the issuance of land titles is laudable in theory, the program bypassed established state institutions set up explicitly to perform such duties. It has been described by some as a massive act of vote-buying by the ruling Cambodian People s Party (CPP), and is in fact entirely funded by private donations from top CPP members. The program is also being implemented in a secretive manner, with no provisions for independent monitoring. There have been numerous credible reports of landholders, especially in indigenous communities, being intimidated or tricked into 157

162 accepting terms dictated by the volunteers. Such individual titles undermine extensive efforts to protect indigenous communities through communal land titling. There are also credible reports of landholders being told their new titles would be revoked if the CPP loses the elections, or being told their official title would only be delivered after a successful election. Exclusions from adjudication have also been documented, especially in Phnom Penh. Recommendation 1: Urge the Cambodian government to conduct a transparent and publicly disclosed land demarcation/classification as soon as possible. There is still no national registry of state public versus private land. The confusion over classifications perpetuates conflict and confusion. Recommendation 2: Call for a genuine end to forced evictions, and for fair and adequate compensation as guaranteed by Cambodian and international law to those who have already been forcibly displaced. Military Abuses State forces, including military soldiers, continue to provide assistance and protection to private companies involved in land disputes with villagers as well as taking part in forceful and often violent evictions. The following are just a few examples out of several others. 11. On December 12, 2011, a commanding military officer from Battambang s Phnom Preuk district shot at a group of villagers, injuring three. The villagers had been demonstrating against the clearing of farmland by Soun Mean Sambath company, which was granted a 4,095 hectare ELC in the area in April 2011, resulting in the ongoing land conflict. The military officer was acting as a security guard for the company. 12. On January 18, 2012, military personnel acting as security guards for TTY Co. Ltd opened fire on a group of villagers who had gathered to prevent clearing of their farmland by company excavators in Kratie s Snuol district. Four villagers were injured by bullets. None of the authorities present during the shooting proceeded to arrest the perpetrators at the time. Four men three security guards and a TTY s general manager were quietly tried in December 2012, and convicted of illegal use of firearms and intentional acts of violence with aggravating circumstances. Their sentences ranged from two to three years, though in each case the sentence was suspended between six months and a year. 13. On April 26, 2012, well-known environmental activist Chut Wutty was shot dead in a remote corner of the Cardamom Mountains while investigating illegal logging. Military police officer In Rattana was also killed by gunfire, and two other members of the military were present. Government officials put forward an array of bizarre and contradictory explanations for Wutty s death, before finally pinning the shooting on Ratanna and closing the case. 14. On May 16, 2012, a large military operation saw hundreds of soldiers, military police and police, aided by a helicopter, storm a village in Kampong Domrey commune, Kratie province. Authorities claim the operation was organized solely to arrest three ringleaders in an alleged secession plot. Villagers, meanwhile, say that the attack was motivated by an ongoing land dispute with Casotim, a large rubber firm. The operation resulted in 2 Several recommendations related to land rights, in particular forced evictions, are relevant to this theme. (See id.) 158

163 the shooting death of a 14-year-old girl, Heng Chantha. There has been no indication of any investigation into this shooting, nor have there been any arrests. The authorities have simply labeled the death accidental. Recommendation 3: Urge the Royal Cambodian Armed Forces to issue a written order calling for all military personnel not to take part in civilian land conflicts. Recommendation 4: Dismantle the private sector sponsorship of military units to avoid further conflict of interests and misuse of armed forces. Prisons and Unlawful Detention Centers In 2010, Cambodia s prisons were filled to 167% of their capacity and the inmate population was growing by about 14% annually. By May 2011, the national prison occupancy rate had ballooned to 179%, while the 18 prisons monitored by LICADHO were filled to 181% of their capacity. In the past year, the population has finally begun to shrink. As of the end of May 2013, the 18 prisons monitored by LICADHO were at about 158% of capacity. This is encouraging, but the overcrowding problem remains serious, and the prison population decrease must continue for a considerable period before the overcrowding crisis can be declared over. 16. Drug arrests nearly quadrupled in 2011, and the number of prisoners detained on drug charges nearly tripled in 2011 alone. One side-effect of the increase in drug arrests has been a corresponding rise in the number of children living with their mothers in some prisons. As of March 2011, only 36 children lived with their mothers in the 18 prisons monitored by LICADHO. By May 2012, that number had more than doubled, to Prison conditions remain abominable, with the authorities providing inadequate food, water, medical care, recreation time and living space. Prisoners are forced to purchase these commodities at their own expense, paying inflated prices to prison staff. Everything has a price, from clean water to sleeping space. The prison system is woefully underfunded and operates like most Cambodian government entities as a private enterprise used to generate income for staff. 18. There is still no parole system. Some 3,000 inmates languish in prison without a final verdict, leaving them at risk of being held past the expiration of their sentences. 19. Despite recommendations to close unlawful detention centers, the government has continued operating these centers, which are used to warehouse people arbitrarily arrested from the streets of Phnom Penh in the interests of beautifying the city. Hundreds of people continue to be detained in one such center, known as Prey Speu, run by the Ministry of Social Affairs. As noted in the 2009 UPR, the centers are used for the systematic unlawful detention of undesirables. While the government has dismantled one of its worse centers, Koh Kor, conditions at the remaining centers have not improved over the past four-and-a-half years, and still include gross overcrowding and lack of adequate food, clean drinking water and medical care. 20. In January 2012, 24 women and six children who were protesting their violent forced eviction from Phnom Penh s Borei Keila settlement were abducted from the street and 3 See Recommendation

164 taken to Prey Speu without any legal process whatsoever. The detainees eventually escaped by climbing over a high wall. 21. In November 2012, Phnom Penh City Hall announced it would be rounding up beggars and homeless children in preparation for the ASEAN Summit, and sending them to Orgkas Khnom, a drug rehabilitation center, for the duration of the event. Spokesman Long Dimanche justified the extrajudicial detentions thus: If the leaders from across ASEAN and the world see beggars and children on the street, they might speak negatively to the government. 4 Recommendation 5: Undertake major reforms, including increasing the prison administration budget, to ensure that prison conditions fully comply with the UN Standard Minimum Rules for the Treatment of Prisoners. The government should also evaluate its criminal justice policy, and move away from its focus on imprisonment as the primary form of punishment for all transgressions, from drug addiction to petty theft to murder. Non-custodial measures should be aggressively implemented at all stages of the criminal justice chain pretrial (supervised release), sentencing (community service and suspended sentences) and post-sentencing (parole and early release). Recommendation 6: Permanently close the remaining Social Affairs Centers, such as Prey Speu, as well as drug rehabilitation centers used to conduct unlawful detention and ensure a proper investigation and prosecution of perpetrators of abuses there. Impunity & Lack of Rule of Law The past four-and-a-half years have seen no improvements in adherence to rule of law throughout Cambodia s justice system. In reality, the role of the justice system is still to perpetuate impunity for State personnel and their associates; persecute political opponents and other critics of the government; and protect the economic interests of the rich and powerful. 23. Corruption and political interference in the police and judiciary are still the major obstacles to rule of law in Cambodia. The gravest of crimes including murder, torture, rape, and trafficking of woman and children continue to go unpunished if the perpetrators have money or influential connections. In particular, State personnel including government officials, police and military officers and their families enjoy a high level of impunity to commit crimes and abuses, both in the course of their duties and in their private time. As a rule, the higher-ranking an official, the more protection from prosecution he or she enjoys. 24. Members of Phnom Penh s Boeung Kak Lake community, involved in a long-running land dispute with a company run by a ruling party Senator, continue to be physically and judicially harassed by authorities. Leading Boeung Kak activist Yorm Bopha was arrested in September 2012 and convicted in December on charges of causing intentional violence. She received a sentence of three years. There is no evidence including from government witnesses that Bopha physically harmed anyone. She was, however, a key leader in the movement calling for the relase of the Boeung Kak 15, a group of fellow activists from her community that were imprisoned on false charges 4 5 See Clean Sweep for ASEAN, Khouth Sophak Chakrya, Mom Kunthear and Shane Worrell, Phnom Penh Post, November 9, See Recommendations 17, 21, 38-40,

165 earlier in Bopha was named an Amnesty International Prisoner of Conscience in late She remains in prison. 25. The case of Chhouk Bandith, a former municipal governor who in February 2012 brazenly shot three garment workers in Svay Rieng province, is another example of ongoing impunity for well-connected officials. Charges against Bandith were actually dropped in December 2012, despite multiple eye-witnesses testifying to his culpability, but reinstated by the Court of Appeal in March The charges causing unintentional injury are woefully inadequate, and Bandith has yet to spend a single day in prison. His trial finally took place June 12-14, with Bandith absent. No verdict has been announced as of the time of this submission. 26. Finally, the recent re-arrest of Born Samnang and Sok Sam Oeun scapegoats in the 2004 murder of union leader Chea Vichea was a shocking turn. The pair, widely acknowledged to have been framed, had been freed in December 2008 by the Supreme Court, in a decision which ordered further investigation into the killing amid extensive evidence of their innocence. The Court of Appeal reheard the case in November 2012, but prosecutors offered no new evidence. Nonetheless, the appeal judges found Born Samnang and Sok Sam Oeun guilty again and ordered them back to prison to serve the remainder of their 20-year sentences. Recommendation 7: Implement the numerous recommendations made by successive Special Representatives of the Secretary-General for human rights in Cambodia with regard to strengthening rule of law and the judiciary. Implement the recommendations advising ratification of the Optional Protocols to the ICCPR and ICESCR. Recommendation 8: Take effective action to improve the independence, impartiality and efficiency of the Constitutional Council and the Supreme Council of Magistracy. Implement the recommendation related to promulgating a Law on the Status of Judges, and a Law Amending the Supreme Council of the Magistracy. Recommendation 9: Conduct serious investigations into unresolved grave human rights violations, including the assassinations of politicians, journalists and trade unionists, and bring the persons responsible to justice. Recommendation 10: Release and vacate the spurious convictions against Yorm Bopha, Born Samnang and Sok Sam Oeun, and others being held for political reasons. 161

166 CAMBODIA AMNESTY INTERNATIONAL AND THE CAMBODIAN LEAGUE FOR THE PROMOTION AND DEFENSE OF HUMAN RIGHTS SUBMISSION FOR THE UN UNIVERSAL PERIODIC REVIEW 18 TH SESSION OF THE UPR WORKING GROUP, JANUARY/FEBRUARY 2014 This submission by Amnesty International and the Cambodian League for the Promotion and Defense of Human Rights (LICADHO) is based on information collected through on-going monitoring and research, and considers the national human rights framework and the situation on the ground for Human Rights Defenders (HRDs) in Cambodia. FOLLOW UP TO THE PREVIOUS REVIEW We welcome Cambodia s acceptance of all 91 recommendations made at the sixth Universal Periodic Review (UPR) session in December 2009, but are concerned that little has been done to implement many of these recommendations, particularly those relating to the national human rights framework and the situation on the ground for HRDs those who, individually or with others, act peacefully to promote or protect human rights. Human rights framework Four States recommended that Cambodia establish a National Human Rights Institution (NHRI) consistent with the Paris Principles. 1 But despite an earlier commitment to do so by Cambodia s Prime Minister Hun Sen in September 2006, and Cambodia s acceptance of these recommendations at its UPR, the Royal Government of Cambodia (RGC) has made no progress in this regard. One state recommended more consultation on law and policy, in particular with regard to their human rights impact. 2 But while there has been consultation on some draft laws, this is undertaken on an ad-hoc basis and has not been adequate. We welcome Cambodia s strong record of ratifying international human rights treaties, including its recent ratification of the Convention on the Rights of Persons with Disabilities (CRPD). But Cambodia has still not ratified the International Convention for the Protection of All Persons from Enforced Disappearance (CED); the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), even though it committed to do so after the previous UPR 3 ; the Second Option Protocol to the ICCPR; and the Optional Protocols to the Convention on the Elimination of All Forms of Discrimination against Women and CRPD, as recommended by some States. 4 Further, Cambodia has still 1 See A/HRC/13/4, recommendation 82.A- 7: Expedite operationalization of an independent human rights institution in accordance with the Paris Principles (Pakistan); accelerate the steps currently under way for the establishment of a national human rights institution consistent with the Paris Principles (Egypt); continue its efforts to establish a national human rights institution in accordance with the Paris Principles, which would strengthen the human rights infrastructure within the country (Thailand); advance the process of establishing an independent national human rights institution in a pragmatic manner and in consultation with all relevant actors (Philippines); 2 Ibid, recommendation 82.6: Widen its consultation process on the development of policy, legislation and regulations to ensure that all legislative instruments are assessed as to their positive and negative impacts on human rights (United Kingdom); 3 See recommendation 82.1 (Brazil) and A (Spain). 4 See A/HRC/13/4, recommendation 82.1: Consider ratifying the International Convention for the Protection of 162

167 not submitted a number of pending reports to the relevant treaty bodies, including any report to the UN Human Rights Committee on compliance with the ICCPR since its initial report in Some states recommended that Cambodia cooperate with the UN to strengthen human rights. 5 As set out below, we are concerned that during the reporting period the RGC has at times been confrontational towards and uncooperative with the Office of the United Nations (UN) High Commissioner for Human Rights (OHCHR) in Cambodia and the Special Rapporteur for the situation of human rights in Cambodia (SRHRC). Human rights situation on the ground - HRDs Seven states recommended greater respect for freedom of expression, 6 but respect for freedom of expression has deteriorated since the previous UPR. In addition, a further nine states recommended better protection of HRDs and facilitation of their work; 7 however, we are particularly concerned that HRDs including land and housing rights activists from urban, rural and indigenous communities; those in grassroots groups and informal groups; those in associations and NGOs; trade unionists; journalists; and parliamentarians continue to face threats, harassment, legal action and violence, including killings, for promoting and protecting human rights. Despite Cambodia s acceptance of no less than 13 recommendations to end forced evictions, 8 land and housing rights activists continue to be targeted in the context of a continuing crisis over land, with forced evictions, land disputes and land grabbing affecting thousands of people. All Persons from Enforced Disappearance (CED) and the Convention on the Rights of Persons with Disabilities (CRPD); the two Optional Protocols to the International Covenant on Civil and Political Rights (ICCPR); the Optional Protocols to the Convention on the Elimination of All Forms of Discrimination against Women and CRPD; and Convention No. 169 of the International Labour Organization, and accomplish the human rights goals set by Human Rights Council resolution 9/12 (Brazil). See recommendation 82.2: Sign and ratify CED and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR); ratify OPICCPR, OP-CEDAW and CRPD and its Optional Protocol (Spain). See recommendation A-3: Consider ratifying CRPD and ensuring its full implementation in domestic law (New Zealand); Consider early ratification of OP-CEDAW, signed in 2001 (Slovakia). 5 See A/HRC/13/4, recommendation 82.90: Continue to cooperate with the United Nations and other international organizations to strengthen human rights in Cambodia (Lao People's Democratic Republic); elaborate an effective mechanism to facilitate cooperation with the relevant institutions of the United Nations (Hungary). 6 Ibid, 82.46: (a) Ensure that the freedom of expression and of the press guaranteed in the Constitution are effectively respected (Switzerland); See recommendation 82.48: (a) Commit itself to respecting freedom of expression and opinion for all, in particular for members of the opposition (Canada); (b) re-examine the modalities for lifting parliamentarian immunity to ensure that this practice does not contravene the principles of pluralism and respect for freedom of expression (France). 7 Ibid, 82.51: Strengthen efforts to protect freedom of expression and the right of all human rights defenders, including those working on land rights issues, to conduct their work without hindrance or intimidation, including by way of safeguarding freedom of assembly and association (Sweden). See recommendation 82.52: Facilitate the work of non-governmental organizations and other relevant civil society groups in the country (Italy). See recommendation 82.53: Develop a policy to protect human rights defenders (Brazil). See recommendation 82.54: (a) In line with a previous recommendation made by the Committee on Economic, Social and Cultural Rights, adopt effective measures to combat the culture of violence and impunity and to better protect human rights defenders, including indigenous leaders and peasant activists (Germany); (b) publicly speak out on reported cases of intimidation and violence including murder of trade unionists, the staff of non-governmental organizations and journalists and to ensure effective investigations and accountability for perpetrators (Austria); (c) effectively investigate and prosecute crimes and violations against human rights defenders and punish those responsible (Norway); (d) investigate and prosecute any attacks on or false allegations in relation to human rights defenders, in particular those working with communities to protect land, houses and access to natural resources and prevent forced displacement, an issue that has been reported on by the Special Rapporteur and the Committee on Economic, Social and Cultural Rights (Ireland). See recommendation 82.55: Adopt appropriate measures to disseminate widely and ensure full observance of the Declaration on Human Rights Defenders (Norway). See recommendation 82.58: Take all necessary measures to ensure that the trade union rights of workers in Cambodia are fully respected and that trade unionists are able to exercise their activities in a climate free of intimidation and risk to their personal security and their lives (United States). 8 Ibid, recommendation : Take further measures to address land issues (Japan). See recommendation 82.62: Promote a legal framework that provides legal certainty in property matters, in particular land ownership and protection against forced evictions (Mexico). See recommendation 82.64: (a) Fully implement the 2001 land law and institute a moratorium on evictions until safeguards such as full compensation and access to basic services in resettlement areas can be guaranteed (Sweden); (b) adopt a moratorium on eviction until measures are taken to guarantee effective implementation of the 2001 law on land property and to deal with this problem in a more humane and dignified manner (Switzerland); (c) put an end to forced evictions, notably by improving the application of the land law of 2001, ensuring a better verification of land titles and guaranteeing strengthened protection of the population affected by the expropriations, which implies in particular prior consultations, a search for alternative solutions to expropriations, offers of re-housing and appropriate compensation of evicted persons (France). See recommendation 82.65: Continue to prioritize the issue of land evictions and to work with 163

168 The RGC continues to control the justice system, and rule of law in the country remains very weak. The justice system is used to persecute HRDs and curtail their work and rights. This is despite Cambodia s support of 11 recommendations on reform to ensure the independence of the judiciary and to strengthen the rule of law. 9 In addition, Cambodia also supported five recommendations to harness the work of the Extraordinary Chambers in the Courts of Cambodia, including to strengthen the national justice system, 10 but apparent political interference is jeopardizing the tribunal s potential in this regard. THE NATIONAL HUMAN RIGHTS FRAMEWORK There are many gaps in Cambodia s human rights framework, both in terms of national infrastructure and law, and ratification of international human rights treaties and cooperation with the UN. National infrastructure and law Cambodia s Constitutional Council is the supreme body through which citizens including HRDs should be able to challenge the constitutionality of laws and state decisions affecting their constitutional rights, including human rights. But the procedures involved in making such challenges either deter or prevent citizens from accessing the Council, which is not independent from the RGC. Someone wishing to make such a challenge must convince either the King, the Prime Minister, the Senate President, the National Assembly President, one tenth of National Assembly members, or one quarter of Senators to make a submission. 11 the Special Rapporteur to ensure an end to forced evictions and fulfil its obligations to respect and protect the human rights of all Cambodians, including individuals belonging to indigenous groups (Ireland). See recommendation 82.66: (a) Undertake a transparent and fair process to determine the conditions and procedures of involuntary relocation (Canada); (b) halt relocations of families to uninhabitable sites and consider evictions as a last recourse, as was requested by the Secretary-General (Germany); (c) develop an effective, transparent and fair resettlement policy and process that is based on national consultations and international best practice and suspend all planned resettlements until this framework is in place (United Kingdom); (d) increase efforts to ensure that evictions occur in compliance with the land law and that greater attention is paid to ensuring that communities relocated to resettlement sites have access to appropriate facilities, especially in urban areas (Australia); (e) work to advance the legal and policy framework on evictions, expropriations and resettlements and to ensure that those resettled have access to the necessary facilities and support (New Zealand). See recommendation 82.67: Adopt and implement a strict legislative framework on evictions and resettlement which ensures that evictions and relocations are legal, negotiated and fairly compensated (Austria). See recommendation 82.68: Enter into a dialogue with the civil society concerned with a view to addressing incidents of unlawful land-grabbing and evictions (Netherlands). 9 Ibid, 82.5: Continue legal and judicial reforms and harmonization of the laws with international human rights instruments (Morocco). See recommendation 82.34: Continue its efforts to promote and protect human rights and to strengthen good governance and respect for the rule of law (Indonesia); continue to strengthen the rule of law and good governance as a means to help enhance human rights promotion and protection within the country (Thailand). See recommendation 82.38: Take further measures to proceed with its judicial reform (Japan). See recommendation 82.40: (a) Ensure the independence and impartiality of the judicial system (Sweden); (b) ensure the independence of the judiciary, without any political intervention (Switzerland); (c) strengthen mechanisms guaranteeing judicial independence, including fully empowering the Government anti-corruption unit to act against corruption within the judiciary (New Zealand); (d) intensify its efforts towards establishment of a fully independent, impartial and neutral judiciary, free from corruption in accordance with international standards, guaranteeing that all perpetrators of human rights violations are held accountable and nobody goes unpunished (Slovakia); (e) look for means to improve the remuneration system for judges to offer better guarantees of independence (Spain); See recommendation : Complete the process of judicial reform and enact essential legislation such as a new penal code, an anti-corruption law and legislation to guarantee and safeguard the independence and impartiality of the court system, court personnel and judges in accordance with international standards (Norway). See recommendation 82.42: Adopt and enact the Law on the Status of Judges, the Amendment of the Law on the Organization and Functioning of the Supreme Council of Magistracy and the anticorruption law in accordance with recommendations made by the Special Representative of the Secretary-General for human rights in Cambodia, the United Nations Development Assistance Framework and the Committee on Economic, Social and Cultural Rights, respectively, and create and adopt a code of conduct for judges, prosecutors and disciplinary councils, including disciplinary provisions (Israel). 10 Ibid, recommendation 82.43: (d) cooperate with the Extraordinary Chambers, the United Nations, international donors and civil society to develop a strategy aimed at ensuring that the national jurisdictions can benefit from the experience of the Extraordinary Chambers (Belgium); (e) take steps to ensure that the work of the Extraordinary Chambers, including the involvement of international judges working alongside Cambodian judges, is harnessed to contribute to the strengthening of the Cambodian judiciary (New Zealand). 11 See article 141 of the Cambodian Constitution, which states that the King, the President of the Senate, the President of the Assembly, the Prime Minister, 1/10 of the Senate members, 1/10 of the Assembly members or the courts, may ask the Constitutional Council to examine the constitutionality of a law after its promulgation, and 164

169 Articles of Cambodia s Constitution provide for an annual National Congress, to be chaired by the King, which would allow citizens including HRDs to raise concerns to be addressed by the RGC. However, the National Congress has never been convened. In May 2013, a National Assembly member of the ruling Cambodian People s Party (CPP) informed the SRHRC that the RGC intended to remove the National Congress from the Constitution. 12 Both the National Assembly and the Senate have a Human Rights and Complaints Reception Committee, and the RGC has its own Human Rights Committee. Although these bodies are able to conduct investigations, they have yet to take action to protect and contribute to redress for victims of human rights abuses including HRDs, or to help bring perpetrators to justice. All three committees are widely regarded as being controlled by the RGC. Cambodia s courts suffer from corruption and remain under RGC control. They are used to persecute HRDs and effectively grant impunity to perpetrators of human rights abuses against HRDs. The Supreme Council of Magistracy, the body constitutionally-mandated to investigate delinquent judges, is also controlled by the RGC, and generally fails to punish delinquent judges including those who appear to make decisions based on external influences. 13 Cambodia ratified the Optional Protocol to the Convention against Torture (OPCAT) in April 2007, but has yet to establish an independent National Preventative Mechanism as OPCAT requires. We recognize the RGC s compliance with some of its obligations under OPCAT, including allowing independent groups to visit and monitor prisons. The shortcomings and lack of independence of those state institutions in Cambodia that should play a role in protecting and promoting human rights underscore the importance of establishing an independent NHRI. But there appears to be no recent progress in this regard, as referenced above. With regard to gaps in national law, the SRHRC recommended in his September 2010 report to the UN Human Rights Council that new laws on the status of judges and prosecutors and on the organization and functioning of the courts be put in place to help ensure that the justice system functions independently. New laws should also be introduced to ensure freedom of information; and around protecting HRDs work. 14 A number of laws including Cambodia s Criminal Code contain provisions that have been or may be used to restrict HRDs work by curtailing freedom of expression and related rights (see also below). We commend the RGC s decision to suspend passing the draft Law on Associations and Non- Governmental Organizations (LANGO), which would have mandated registration for civil society groups and allowed the RGC to control the financing, status and activities of such groups. The draft law is still looming over Cambodia s civil society and HRDs and should be abandoned. The RGC often fails to consult with civil society including HRDs on draft legislation and does not disclose many of its legislative initiatives. For example, there has been no consultation on the project launched in June 2012 by Prime Minister Hun Sen to allocate land titles to people living inside state forests, and on economic and other land concessions. Further, we are concerned that legislation that has the potential to impact on human rights is often approved without adequate debate in the National Assembly, which is dominated by the ruling party. In an extreme example, a new law criminalizing denial of Khmer Rouge crimes the Law Against Non- Recognition of the Crimes Committed During the Democratic Kampuchea Period was passed by the National Assembly with little debate and after all opposition members had been expelled from the that the citizens have the right to appeal against the constitutionality of laws following this aforementioned procedure. 12 As reported by the Cambodia Daily, on May 21 st 2013, UN Human Rights Envoy to Meet Hun Sen : Mr. Subedi and Mr. Vun also discussed the constitutional requirement that an annual national congress be held every December, which is to be presided over by the King and is supposed to enable the people to be directly informed on various matters of national interests and to raise issues and requests for the state authority to solve. The congress has never been held, and the government has indicated that it sees no use for it and wants to change the Constitution to remove the requirement. 13 See the Report of the Special Rapporteur on the situation of human rights in Cambodia, Surya P. Subedi, submitted at the 15th session of the Human Rights Council, on September 16th 2010 (A/HRC/15/46). 14 See the Report of the Special Rapporteur on the situation of human rights in Cambodia, Surya P. Subedi, submitted at the 15th session of the Human Rights Council, on September 16th 2010 (A/HRC/15/46). 165

170 National Assembly for joining the newly-merged opposition party, the Cambodian National Rescue Party. 15 International human rights treaties and cooperation with the UN We welcome OHCHR s presence in Cambodia and the RGC s acceptance of technical support from OHCHR in some areas. But we are concerned by reports that Cambodia s Prime Minister Hun Sen informed the UN Secretary-General in October 2010 that he wanted OHCHR in Cambodia closed and the representative of the UN High Commissioner for Human Rights removed. 16 We also welcome the SRHRC s mandate. However, the RGC has not demonstrated a willingness to implement most of the SRHRC s recommendations. After refusing to meet with the SRHRC during his December 2012 visit, RGC representatives met with him in May But the Prime Minister did not meet him, and associations affiliated with the ruling party orchestrated protests against his work. 17 Further, we are concerned that the Special Rapporteur on the Independence of Judges and Lawyers has still not been given permission to visit Cambodia, even though a request to visit has been pending since 2006, and Cambodia had expressed support to grant such a request during its last UPR. 18 The Special Rapporteur on Freedom of Assembly and Association and the Special Rapporteur on Human Rights Defenders have also requested to visit Cambodia, but permission has yet to be granted. At the regional level, in November 2012, Cambodia and the other member states of the Association of Southeast Asian Nations (ASEAN) adopted the ASEAN Human Rights Declaration, despite serious concerns that it falls short of international standards. The ASEAN Intergovernmental Commission on Human Rights continues to fail to investigate or take other action against human rights violations in ASEAN member states including Cambodia. THE HUMAN RIGHTS SITUATION ON THE GROUND HRDS The Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (the Declaration on Human Rights Defenders ), adopted by the UN General Assembly in 1998, provides for the support and protection of HRDs. It does not create new rights but articulates the application of existing rights to HRDs role and situation. Although not legally binding, the Declaration is based on rights enshrined in other international instruments, including the ICCPR to which Cambodia is a State party. The rights of HRDs include the right to seek the protection and realization of human rights; to conduct human rights work; to assemble peacefully; to seek and obtain information relating to human rights; and to make complaints about human rights. 15 See joint statement Cambodia s Legislature Dismantled on the Eve of the National Elections by the Cambodian Center for Independent Media (CCIM), Cambodian Food and Service Worker Federation (CFSWF), Cambodia's Independent Civil-Servants Association (CICA), Cambodian League for the Promotion and Defense of Human Rights (LICADHO), Cambodian Worker Center for Development (CWCD), Cambodian Youth Network (CYN), Coalition of Cambodian Farmer Community (CCFC), Community Legal Education Centre (CLEC), Equitable Cambodia (EC), Farmer Development Association (FDA), Independent Democracy of Informal Economy Association (IDEA), Neutral and Impartial Committee for Free and Fair Election in Cambodia (NICFEC), People s Action for Change (PAC), Sahmakum Teang Tnaut (STT), The Cambodian NGO Committee on CEDAW (NGO-CEDAW) published on June 10th See press release by the International Federation for Human Rights (FIDH) The international community must stand by human rights in Cambodia, November 2 nd According to the information received, Cambodian Prime Minister Hun Sen asked Mr. Ban Ki-moon, the United Nations Secretary-General, on October 27, to remove Mr. Christophe Peschoux, the representative of the OHCHR in Cambodia, or the OHCHR office will have to be closed. 17 As reported by the Cambodia Daily, on May 23 rd 2013, Subedi Protest Linked to CPP-Aligned Youth Group. 18 See A/HRC/13/4, recommendation 82.21: Grant the request made by the Special Rapporteur on the independence of judges and lawyers in 2006, 2008 and 2009 to visit the country (Netherlands); approve the request for a visit by the Special Rapporteur on the independence of judges and lawyers (Norway); See recommendation 82.18: Consider issuing a standing invitation to United Nations human rights special procedures (Brazil); issue and implement a standing invitation to all special procedures (Czech Republic); issue a standing invitation to all Council special procedures (Slovakia); See recommendation 82.19: Consider favourably the request for visits by thematic mandate-holders (Norway). 166

171 The reporting period has seen a deterioration in the situation of HRDs and respect for their rights in Cambodia. Restrictive laws curtail their work and rights and they continue to face harassment and intimidation. Excessive force is used against HRDs when they assemble peacefully, and there have been death threats against and killings of HRDs. Judicial persecution of HRDs has reached new heights, with Cambodia s courts targeting HRDs while effectively granting impunity to those perpetrating human rights abuses against them. Some illustrative examples are provided below. Laws restricting the work of HRDs and their rights Despite Cambodia s acceptance of recommendations made by some States in the previous UPR to ensure that the Criminal Code complies with the ICCPR, 19 some provisions of the current Criminal Code have been or may be used to criminalize the peaceful exercise of the right to freedom of expression provided at article 41 of Cambodia s Constitution - and the work of HRDs. The current Criminal Code came into force in December 2010, and several of its articles contain vague language referring to defamation, insults and incitement which can be and are misused to obstruct/punish the legitimate activities of HRDs. Article 305 on defamation prohibits any comment made in bad faith and likely to injure a person or institution. Article 307 prohibits public insults ; however, this term is not defined. Both the crimes of defamation and insult carry the potential of substantial fines, and a convicted person may be imprisoned if unable to pay the fine. Article 495 vaguely defines incitement as incitement to commit a crime or incitement to disturb social security. 20 Incitement carries a prison sentence of up to two years. Article 502 criminalizes insults of public officials any act directed at a public official that affects the dignity of a person. This provision appears to criminalize any act that a public official might interpret as hurting their feelings. Article 522 and 523 on the publication of comments intended to influence a court or on criticizing a judicial decision could be used to criminalize HRD s public advocacy around the justice system and may deter lawyers from speaking about their cases. There are many examples of provisions in the former and current criminal codes being used to criminalize freedom of expression in the reporting period. In June 2009, after an unfair trial, the Phnom Penh Municipal Court sentenced journalist Hang Chakra, editor-in-chief of the opposition-affiliated Khmer Machas Srok newspaper, to one-year imprisonment and a large fine for disinformation under the previous UN Transitional Authority in Cambodia (UNTAC) Criminal Code. His newspaper had published articles that alleged corruption within the office of Deputy Prime Minister Sok An. Amnesty International considered him a prisoner of conscience. 21 In August 2009, after an unfair trial, the Phnom Penh Municipal Court convicted opposition Sam Rainsy Party (SRP) parliamentarian Mu Sochua of defamation under the previous (UNTAC) Criminal Code for filing a complaint also regarding defamation against the Prime Minister. She had no legal counsel because her lawyer had withdrawn from the case after receiving threats of legal action for speaking about the case. Mu Sochua received a non-custodial sentence. 22 In May 2010, LICADHO employee Leang Sokchouen was arrested on charges of disinformation under the previous (UNTAC) Criminal Code for his alleged involvement in distributing antigovernment pamphlets. He had never distributed any leaflets and the warrant used in his arrest was for another person. In August 2010, he was convicted and sentenced to two years in prison. He served his entire sentence. 23 In August 2011, the Phnom Penh Municipal Court convicted five people of incitement, for distributing leaflets criticizing the RGC and land concessions. 24 The Law on Peaceful Assembly came into force in 2009 and specifies onerous notification and approval 19 Ibid, recommendation 82.46: (b) review its newly adopted penal code with a view to ensuring its compliance with the permissible limitations to freedom of expression as stated in ICCPR (Czech Republic); (e) define the scope of defamation and disinformation charges to ensure that these do not impinge on freedom of expression and give clear guidance to judicial officials so that these provisions do not result in a large number of cases where the charges are disproportionate (United Kingdom). 20 See LICADHO s report The Delusion of Progress: Cambodia s Legislative Assault on Freedom of Expression, October See Amnesty International s press release Cambodia: Jailing of newspaper editor setback to free expression published on June 30 th See Amnesty International s Annual Report on Human Rights in the Kingdom of Cambodia for See also 23 See LICADHO s report Attacks and Threats Against Human Rights Defenders In Cambodia , published in December Ibid. 167

172 requirements for demonstrations. The authorities often use the law to prohibit peaceful protests likely to be critical of the RGC, on grounds of security, safety or public order. The law requires photographs and identity information from organizers, and threatens criminal sanctions for organizers for vaguely defined transgressions by any participants. HRDs right to peaceful assembly has repeatedly been violated in the reporting period. 25 In August 2009, police broke up a peaceful march in support of SRP parliamentarian Mu Sochua, who was found guilty of defamation (see above). The RGC said that the protesters had failed to notify the authorities, labelling the march as illegal even though the Law on Peaceful Assembly had not yet been adopted meaning that there were no notification requirements. 26 In August 2011, around 300 mostly indigenous people from around Prey Lang forest gathered in Phnom Penh to raise awareness about the destruction of their traditional lands by businesses granted economic land concessions affecting the forest. Around 100 of them were briefly detained for distributing leaflets about their plight, which police claimed could disrupt social order. 27 In July 2012, the authorities disrupted a training session on land rights organised in Ratanakiri province by the Cambodian Center for Human Rights and the Cambodian Human Rights and Development Association. According to the province s Deputy Governor, the intervention was justified because the organizers had failed to notify the authorities about the event. However, article 3 of the Law on Peaceful Assembly explicitly states that all educational activities for social interests are exempted from the notification requirement. 28 An Anti-Corruption Law entered into force in August 2011 and several of its provisions threaten freedom of expression. Among others, article 41 on Defamation and Disinformation provides that a whistleblower is subject to imprisonment if the information he provides leads to an undefined useless inquiry. 29 We are also concerned that a new Law Against Non-Recognition of the Crimes Committed During the Democratic Kampuchea Period may be misused to criminalize criticism of the RGC and legitimate dissent by HRDs. We are concerned that a number of other draft laws may be designed towards, or have the effect of, restricting the work of HRDs and their human rights. Although the LANGO was not passed, this draft law remains a threat to the work of HRDs, as outlined above. In August 2011, the Ministry of Interior shut down temporarily the NGO Sahmakum Teang Tnaut (STT) without giving a legal reason. However, STT had recently published a report criticising the Asian Development Bank-sponsored compensation packages to families affected by the Phnom Penh railroad rehabilitation project. 30 This incident raised fears about how the LANGO would be used to control and limit the activities of civil society organizations. A fourth version of the draft Law on Trade Unions, presented by the authorities to a limited group of stakeholders in September 2011, includes some worrying provisions on burdensome registration and reporting requirements, and hefty fines for ill-defined improper conduct. 31 We are also concerned that a draft Law on the Management and Use of Agricultural Land, purportedly intended to promote sustainable agricultural development, contains provisions which make it a crime for anyone to contravene the provisions of the law or to hinder any person performing his or her duties under the law. 32 Such provisions could be used against HRDs advocating around issues related to agricultural development. A long-rumoured Cyber Law, a draft of which has not been released, is looming over civil society and 25 See FIDH s Analysis of the Law on Demonstrations Adopted by the National Assembly in October 2009, October 29 th See LICADHO s report Attacks and Threats Against Human Rights Defenders In Cambodia , published in September Supra note Ibid. 29 Supra note Supra note Article 66 and 81 of the fourth draft of the Trade Union Law, as of September Such actions include agitating for purely political purposes at the workplace, illegally blocking an entrance or exit gate, preventing nonstriking workers from working and illegal striking. 32 Article 54 of the Draft Law on the Management and Use of Agricultural Land, as of July

173 HRDs, who increasingly rely on the Internet to disseminate and receive information, communicate, coordinate and promote human rights. Although the RGC claims that such a law is necessary for national security reasons, recent incidents show that it is more likely intended to silence critics. For example, in January 2011, all blogs hosted by the domain Blogspot, including several blogs critical of the RGC, were blocked by most Cambodian Internet providers. 33 Harassment and intimidation of HRDs The Cambodian authorities often resort to threats, harassment and intimidation of HRDs to prevent them from enjoying their rights and undertaking their legitimate work to promote and protect human rights. The case of Buddhist monk and Martin Ennals award winner, the Venerable Luon Sovath, illustrates the hurdles HRDs face. In August 2010, during a peaceful gathering outside Siem Reap Provincial Court in support of Chi leaders of the Kreng community, religious authorities, escorted by police officers, harassed Luon Sovath. They accused him of violating Monk Proclamation No. 403/07 which prohibits monks from participating in demonstrations that disturb the public order. The villagers formed a circle around the monk to protect him and prevent his possible arrest. Later, as he left, traffic police intercepted the vehicle he was travelling in, but some villagers again protected him. On another occasion, in May 2011, during a peaceful protest by people from around Prey Lang forest, he had to be escorted away by human rights groups as the authorities threatened to arrest him. Most recently, in May 2012, plain-clothed police and monks abducted him at a peaceful protest by the Boeung Kak Lake community in Phnom Penh. Luon Sovath was detained for a day at Botum pagoda and then given the choice of signing a document agreeing to stop his human rights activism or face defrocking, arrest and criminal prosecution. He was eventually released later that night after he signed an altered document. Anonymous threats against him and harassment by police officers continue to this day, and he has been banned from staying at pagodas throughout the country. 34 In March and November 2012, the authorities disrupted grassroots network associations and local, regional and international NGOs from holding workshops and events around the ASEAN summits on a range of human rights issues. Apparently under instructions from the authorities, guesthouses refused to allow participants to stay, venues cancelled events, and the police monitored workshops and other events. 35 Excessive force against peaceful protestors The onerous provisions of the Law on Peaceful Assembly requiring prior notifications and approval are repeatedly used to ban peaceful protests. The authorities often employ excessive force to disperse peaceful protests by HRDs and others, sometimes leading to injuries or death. The perpetrators for these abuses are rarely brought to justice. In March 2009, security forces shot at unarmed villagers in Chi Kreng district, Siem Reap province, injuring at least four. The villagers were protesting against the loss of disputed farmland. Police arrested at least nine of the villagers, and two were subsequently convicted of robbery for attempting to harvest their rice on the disputed land. 36 In October 2010, during the UN Secretary-General s visit to Cambodia, a group of over 100 police officers violently dispersed a group of 50 protesters, who had gathered to seek the Secretary- General s intervention in the on-going Boeung Kak Lake land dispute. Activist Suong Sophorn was badly beaten by the police and fell unconscious due to a serious head injury; video footage shows him being dragged and beaten even after he lost consciousness. 37 In May 2011, military and police officers violently dispersed around 1,000 garment factory workers in Phnom Penh and members of the Free Trade Union of Workers during a peaceful strike and demonstration over unpaid wages. 38 In January 2012, security guards shot at peaceful land protesters in Snuol District, Kratie province, injuring four people. 39 In February 2012, then town Governor Chhouk Bandith shot and severely injured three garment workers during a demonstration in Bavet town, Svay Rieng province. The workers were asking for 33 Supra note Ibid. 35 Ibid. 36 Supra note Supra note Ibid. 39 Ibid. 169

174 increased wages and improved working conditions. Although Chhouk Bandith admitted to firing his weapon during the demonstration, he was charged and convicted only for unintentionally causing injuries, and was sentenced to just 18 months imprisonment. He failed to attend his trial in June 2013 and has yet to be arrested. 40 Death threats and killings Death threats, attempted killings and murders of HRDs have been recorded in the reporting period. However, the perpetrators of these crimes often remain unidentified and are rarely brought to justice. In April 2010, two men attempted to shoot land rights activist Sim Mey in Battambang province. Two days later, fellow community representative Pich Sophon was shot dead by three unidentified men. He had been involved in a dispute between his village, the Royal Cambodian Armed Forces and a private company. 41 In July 2011, an unidentified gunman opened fire on the home of land rights activist Kun Eng in Siem Reap province. Fortunately, neither Kun Eng nor his family members were injured. 42 In April 2012, the village chief entered the home of evicted railway community activist Ros Bopha. He was armed with a gun and shouted threats, but she had already fled the scene. However, the village chief came back a few days later with some of his supporters and threw rocks at her house and shouted at her. 43 In April 2012, Chut Wutty, a well-known environment activist and Director of the Natural Resource Protection Group, a Cambodian NGO that campaigns against the destruction of the country s forests, was shot dead in Koh Kong province. The military officer who reportedly shot him was also killed in the incident. The investigation and subsequent trial were flawed. 44 In September 2012, journalist Hang Serei Oudom was found dead in the trunk of his car. He had previously exposed the links between local elites and illegal logging and forest crimes in Ratanakiri province. 45 Judicial persecution The courts are used to persecute HRDs, while those perpetrating human rights abuses against HRDs, enjoy impunity. The spurious charges levelled against HRDs vary, but often include defamation, incitement, illegal occupation of land, destruction of property, trespassing or forging documents around land disputes. There are indications that the authorities may now be shifting towards using trumped-up charges against HRDs that are unrelated to their human rights work, such as assault and drug trafficking. In some cases, HRDs are arrested and then released on bail, while others are forced to thumb-print statements promising to cease their activism. Often, charges are brought and not acted on, but never dropped, and remain a lever to coerce HRDs into ceasing their activism. In other cases, HRDs are arrested and detained, tried on spurious charges and sentenced to prison terms. Convictions are rendered despite a lack of evidence, and most of the trials do not meet international standards of fairness and impartiality. Such judicial persecution removes HRDs from their communities, associations, NGOs, trade unions and others groups. It also deters other HRDs from continuing their activism, for fear of being arrested and imprisoned. In August 2009, You Sos Maly, a representative of villagers from Ou Khom village, Sdao commune, Samlot district in Battambang province who were involved in a land dispute with a businessman, was arrested for failure to appear in court and trespassing on private property. He was detained overnight and questioned at the provincial court the following morning. In exchange for his release, he thumb-printed a document agreeing to give the disputed village land to the businessman and cease his activism. 46 After her family and others in Bos village, in Oddar Meanchey province, were forcibly evicted in October 2009, Hoy Mai tried to appeal to the authorities, but was arrested and detained for eight 40 Ibid. 41 Supra note Ibid. 43 Ibid. 44 Ibid. 45 Ibid. 46 Supra note

175 months. She was released but despite promises she was not given a new plot of land, leaving her and her children homeless and destitute. 47 In June 2011, trade union leader Sous Chantha was convicted for distributing drugs and sentenced to 10 months imprisonment. Two months of his sentence were suspended and, as he had already spent nine months in pre-trial detention, he was then released. The charges against him were believed to be unfounded and intended to deter him and others from advocating for labour rights. 48 In May 2012, 16 families from Phnom Penh s Boeung Kak Lake area, where thousands of families have been forcibly evicted, staged a peaceful protest. The authorities arrested 13 women, including some of the key community representatives. The women were charged, tried, convicted and sentenced in a grossly unfair trial that lasted just three hours. The Phnom Penh Municipal Court denied the women s lawyers request for the case file, for a delay to allow the preparation of the defence, and to call witnesses to testify. All the women were found guilty of obstructing public officials and illegally occupying state land and sentenced to two-and-a-half-years in prison, although for some their sentence was partially suspended. 49 Amnesty International considered them to be prisoners of conscience. After a campaign by the community and local NGOs, and international pressure, the women were released on appeal in June 2012 with their sentences suspended. In July 2012, Beehive independent radio station owner Mam Sonando was arrested and accused of various charges relating to inciting an insurrection and furthering a so-called secessionist movement in Kratie province s Broma village. The villagers were involved in an on-going land dispute with a company granted an economic land concession. In May 2012, military forces laid siege to the village, shooting and killing a 14-year-old girl. In a public speech, Prime Minister Hun Sen called for Mam Sonando s arrest. Mam Sonando had never been to Broma, but just before the Prime Minister s speech, he had broadcast a report about a complaint submitted at the International Criminal Court accusing RGC officials of crimes against humanity by displacing thousands of people through forced evictions. Despite a wholesale lack of evidence, the Phnom Penh Municipal Court convicted Mam Sonando of instigating an insurrection, and sentenced him to 20 years imprisonment. Amnesty International considered him a prisoner of conscience. The Appeals Court released him in March 2013, further to a local campaign and international pressure, changing the charges to clearing forest land and suspending the remainder of a new fiveyear prison sentence. 50 In September 2012, Yorm Bopha, a representative from Phnom Penh s Boeung Kak Lake community, was arrested and detained for allegedly planning an assault. She and her husband were charged with intentional violence with aggravating circumstances, and convicted in an unfair trial on 27 December During the trial, witness testimonies were inconsistent and there was a lack of credible evidence. Bopha s non-activist husband was given a suspended prison sentence and released, while she was sentenced to three years in prison. 51 The convictions were upheld on appeal in June 2013, while one year of Bopha s sentence was suspended. Amnesty International considers her a prisoner of conscience. The courts effectively grant impunity for perpetrators of human rights violations, including against HRDs. In December 2012, the Appeal Court upheld the 20-year sentences against Born Samnang and Sok Sam Oeun who were wrongly convicted of the killing of trade union leader and HRD Chea Vichea in 2004 despite the lack of evidence. The real killers of Chea Vichea have never been brought to justice. 47 See Amnesty International s Annual Report on Human Rights in the Kingdom of Cambodia for Ibid. 49 Supra note Ibid. 51 Ibid. 171

176 RECOMMENDATIONS FOR ACTION BY THE STATE UNDER REVIEW Amnesty International and LICADHO call on the RGC to: HUMAN RIGHTS FRAMEWORK National infrastructure and law Implement the framework for judicial reform set out in the September 2010 report by the Special Rapporteur for the situation of human rights in Cambodia, including to pass and implement laws to ensure the justice system functions independently. The RGC must free the law enforcement and justice system from political control and corruption; Establish an independent National Preventative Mechanism as required by OPCAT, as recommended in the previous review cycle and accepted by Cambodia; 52 Establish a National Human Rights Institution, in accordance with the Paris Principles, as recommended in the previous cycle and accepted by Cambodia; 53 Consult properly on all legislation, ensuring adequate consultation with affected stakeholders including relevant sections of civil society, and proper scrutiny and debate in the National Assembly as recommended in the previous cycle and accepted by Cambodia. 54 International human rights treaties and cooperation with the UN Ratify the First Optional Protocol to the ICCPR as promised after the previous UPR cycle, to allow individuals including HRDs to submit complaints to the Human Rights Committee around violations of the rights in the ICCPR. 55 Cooperate with the UN treaty bodies and satisfy Cambodia s reporting obligations, such as the submission of the second report to the Human Rights Committee, due since 2002, as recommended in the previous cycle and accepted by Cambodia. 56 Improve cooperation with the Special Rapporteur for the situation of human rights in Cambodia and the OHCHR in Cambodia, ensuring regular engagement with the same by senior RGC members. Approve the request for a visit by the Special Rapporteur on the Independence of Judges and Lawyers, as recommended in the previous cycle and accepted by Cambodia. 57 Also approve the requests for visits by the Special Rapporteur on Freedom of Peaceful Assembly and Association and the Special Rapporteur on Human Rights Defenders. Issue invitations to visit Cambodia to the Special Rapporteur on Freedom of Opinion and Expression and the Special Rapporteur on Adequate Housing. 52 See A/HRC/13/4, recommendation 82.8: Build on progress towards the establishment of an independent national preventive mechanism with the necessary mandate and resources to fulfil its obligations under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Denmark). 53 Ibid, recommendation 82.7: Expedite operationalization of an independent human rights institution in accordance with the Paris Principles (Pakistan); accelerate the steps currently under way for the establishment of a national human rights institution consistent with the Paris Principles (Egypt); continue its efforts to establish a national human rights institution in accordance with the Paris Principles, which would strengthen the human rights infrastructure within the country (Thailand); advance the process of establishing an independent national human rights institution in a pragmatic manner and in consultation with all relevant actors (Philippines). 54 Ibid, recommendation 82.6: Widen its consultation process on the development of policy, legislation and regulations to ensure that all legislative instruments are assessed as to their positive and negative impacts on human rights (United Kingdom). 55 Ibid, recommendation 82.1: Consider ratifying the International Convention for the Protection of All Persons from Enforced Disappearance (CED) and the Convention on the Rights of Persons with Disabilities (CRPD); the two Optional Protocols to the International Covenant on Civil and Political Rights (ICCPR); the Optional Protocols to the Convention on the Elimination of All Forms of Discrimination against Women and CRPD; and Convention No. 169 of the International Labour Organization, and accomplish the human rights goals set by Human Rights Council resolution 9/12 (Brazil). 56 Ibid recommendation 82.17: Submit its pending reports to the relevant treaty bodies (Pakistan). 57 Ibid, recommendation 82.21: Grant the request made by the Special Rapporteur on the independence of judges and lawyers in 2006, 2008 and 2009 to visit the country (Netherlands); approve the request for a visit by the Special Rapporteur on the independence of judges and lawyers (Norway). 172

177 SITUATION ON THE GROUND HUMAN RIGHTS DEFENDERS AND FREEDOM OF EXPRESSION Respect and protect the right of HRDs, including those working on economic, social and cultural rights, to conduct their work without hindrance, intimidation or harassment, in line with the UN Declaration on Human Rights Defenders, as recommended in the previous cycle and accepted by Cambodia. 58 Laws restricting the work of HRDs and their rights Ensure that the Criminal Code and other laws outlined above comply with Cambodia s Constitution and international human rights obligations, including to respect freedom of expression, association and peaceful assembly. Harassment and intimidation of HRDs Stop the harassment and intimidation of HRDs by the police and other authorities. Excessive force against peaceful protestors End the use of excessive force against peaceful protestors. Issue clear guidelines to law enforcement officials on the rights to freedom of expression, assembly and association, in line with international standards, and inform law enforcement personnel, at all levels, of their obligations to respect and protect human rights, and make clear that they will be held accountable for human rights violations perpetrated by them. Death threats and killings Publicly condemn attacks against human rights defenders, and make public commitments that human rights defenders and other individuals will not be arrested purely for engaging in the peaceful exercise of their rights to freedom of expression, association and assembly, as recommended in the previous cycle and accepted by Cambodia. 59 Ensure that all human rights abuses against human rights defenders, including community representatives, lawyers and human rights monitors, are promptly, impartially and effectively investigated, and the suspected perpetrators brought to justice, as recommended in the previous cycle and accepted by Cambodia. 60 Judicial persecution End judicial persecution against HRDs, and focus instead on bringing to justice perpetrators of human rights violations against them. Immediately and unconditionally release HRDs imprisoned for their peaceful work and the exercise of their human rights, including prisoner of conscience Yorm Bopha. Ensure the release of those wrongfully convicted and imprisoned as scapegoats for attacks against HRDs, including Born Samnang and Sok Sam Oeun, who were wrongfully convicted and imprisoned for the killing of trade union leader Chea Vichea. 58 Ibid, recommendations 82.51: Strengthen efforts to protect freedom of expression and the right of all human rights defenders, including those working on land rights issues, to conduct their work without hindrance or intimidation, including by way of safeguarding freedom of assembly and association (Sweden); Facilitate the work of non-governmental organizations and other relevant civil society groups in the country (Italy); Develop a policy to protect human rights defenders (Brazil); Adopt appropriate measures to disseminate widely and ensure full observance of the Declaration on Human Rights Defenders (Norway); Ensure that the draft law on non-governmental organizations does not make their working conditions more difficult and respect their freedom of expression and association (France). 59 Ibid, recommendation 82.54: (a) In line with a previous recommendation made by the Committee on Economic, Social and Cultural Rights, adopt effective measures to combat the culture of violence and impunity and to better protect human rights defenders, including indigenous leaders and peasant activists (Germany); (b) publicly speak out on reported cases of intimidation and violence including murder of trade unionists, the staff of nongovernmental organizations and journalists and to ensure effective investigations and accountability for perpetrators (Austria); (c) effectively investigate and prosecute crimes and violations against human rights defenders and punish those responsible (Norway); (d) investigate and prosecute any attacks on or false allegations in relation to human rights defenders, in particular those working with communities to protect land, houses and access to natural resources and prevent forced displacement, an issue that has been reported on by the Special Rapporteur and the Committee on Economic, Social and Cultural Rights (Ireland). 60 Ibid. 173

178 18. HIV, Sexual and Reproductive Rights Issue Universal Periodic Review of Cambodia 18 th Session January / February 2014 Joint Submission by: Cambodian Center for Human Rights (CCHR) & Asia Pacific Network of People Living with HIV/AIDS (APN+) & Sexual Rights Initiative (SRI) 174

179 Key Words: HIV, comprehensive sexuality education, sexual orientation and gender identity, access to sexual and reproductive health services, discrimination, human rights Executive Summary: 1. This submission was written by the Cambodian Center for Human Rights 1 and the Asia Pacific Network of People Living with HIV (APN+), 2 in collaboration with the Sexual Rights Initiative (SRI) This submission provides an overview of the general situation of sexual and reproductive health and rights (SRHR) in Cambodia, looking at the legislative context. The submission includes a detailed account of specific aspects of SRHR, starting off with an assessment of the level of access to quality health services in Cambodia, which includes a discussion of the overall status of the health care sector, particular challenges caused by the criminalization of sex work, difficulties faced by people living with HIV (PLHIV) and the lack of adequate sexuality education. Following that, the submission includes a discussion of discrimination based on sexual orientation and gender identity across a wide range of sectors, including families and communities, the workplace, healthcare and law enforcement. Within this context, the submission looks at the implementation thus far of some recommendations made by UN member states during Cambodia s 2009 Universal Periodic Review, in relation to these sub-topics. The submission concludes with Recommendations to the Royal Government of Cambodia (RGC) on how to improve the situation of SRHR in Cambodia. Legal Context 3. Article 31 of the Constitution of the Kingdom of Cambodia (the Constitution) states that Every Khmer Citizen shall be equal before the law, enjoying the same rights and freedoms and fulfilling the same obligations regardless of race, color, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status. The Constitution makes no mention of sexual orientation and gender identity (SOGI) or health as grounds on which discrimination is prohibited. Article 72 of the Constitution states that The health of the people shall be guaranteed. The State shall pay attention to disease prevention and medical treatment. Poor people shall receive free medical consultations in public hospitals, infirmaries and maternity clinics CCHR is a leading non-aligned, independent, non-governmental organization that works to promote and protect democracy and respect for human rights primarily civil and political rights - in Cambodia. CCHR s empower civil society to claim its rights and drive change; and through detailed research and analysis, develops innovative policy, and advocates for its implementation. CCHR is an advocacy organization facilitating grassroots participation by empowering local communities through education of their civil and political rights. It facilitates constructive interaction between Cambodian civil society and the international community in order to advocate the progressive realization of Cambodian human rights. ( APN+ is the network of PLHIV living in the Asia Pacific region. It was established in response to the need for a collective voice for PLWHA in the region, to better link regional PLHIV with the Global Network of PLHIV (GNP+) and positive networks throughout the world, and to support regional responses to widespread stigma and discrimination and better access to treatment and care. ( The Sexual Rights Initiative is a coalition including: Action Canada for Population and Development (Canada); Coalition of African Lesbians (Africa), Creating Resources for Empowerment and Action (India), AKAHATA (Latin America), Egyptian Initiative for Personal Rights (Egypt), Federation for Women and Family Planning (Poland), and others ( 175

180 4. Article 31 of the Constitution recognizes and respects the Universal Declaration of Human Rights (UDHR). Cambodia ratified the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1992, making the provisions within legally binding upon Cambodia. The fact that the ICCPR is incorporated into Cambodian domestic law was confirmed by a decision of the Constitutional Council dated 10 July 2007, which stated that international conventions that Cambodia has recognized form part of Cambodian law. 4 While international instruments ratified by Cambodia such as the ICCPR and the ICESCR fail to make specific mention of SOGI as prohibited grounds for discrimination, UN treaty bodies have repeatedly held that the other status catch-all category also present in the Constitution is to be interpreted to include SOGI. 5. The Cambodian Criminal Code 2009 identifies the following as prohibited grounds for discrimination: (1) membership or non-membership of a given ethnic group, nationality or race; (2) membership or non-membership of a given religion; (3) political affiliation; (4) union activities; (5) family situation; (6) gender; (7) state of health; and (8) disability. 5 There are no supplementary anti-discrimination laws to address discrimination on the basis of SOGI. 6. Marriage is defined in both Article 45 of the Constitution and Article 3 of the Law on Marriage and the Family as an agreement or contract between a man and a woman, while same-sex marriage is specifically prohibited in Article 6 of the Law on Marriage and the Family. 7. The Law on the Suppression of Human Trafficking and Sexual Exploitation 2008 (LHTSE) criminalizes the solicitation of another in public for the purpose of prostituting himself or herself and the procurement of prostitution (Chapter IV, Articles 23-32), in other words rendering all forms of prostitution illegal. 8. Article 18 of the Law on the Prevention and Control of HIV/AIDS states that any practice or acts of those who is HIV positive, which have intention to transmit HIV/AIDS to other people, shall be strictly prohibited [sic]. Article 50 provides for prison terms of ten to fifteen years for people who violate Article 18. Chapter VIII, Articles further prohibit all forms of discrimination based on HIV status. 9. Article 23 of the Cambodia Education Law gives the Ministry of Education power to determine the curriculum for all levels of education in Cambodia. The Ministry of Education, Youth and Sport s Education Strategic Plan , under sub-program 1.6, includes Strengthening and Expanding the School Health Promotion Program, which provides for training for sub-national staff on sexual, re-productive health, HIV/AIDS, awareness on violence, gender, drug and relevant topics. According to the Strategic Plan, 7,600 million riels is meant to be budgeted for enhancing awareness health education focus on sexual, reproductive health and right including HIV/AIDS, STI, Drug and Relevant topics. 4 5 Constitutional Council of the Kingdom of Cambodia, Decision No. 092/003/2007, 10 July 2007 Chapter 5, Section 2 Discrimination, Art. 265, paras

181 Implementation of Specific UPR Recommendations 10. Cambodia accepted all 91 recommendations made during its first UPR in December 2009, including several recommendations mentioning the need for the RGC to address the state of the health care sector. 6 No recommendations from 2009 addressed specific issues of SOGI, sexual rights, reproductive health, sex work, the rights of People Living with HIV (PLHIV) or other such issues. Access to Quality Health Care Services 11. Recommendation 12 from the Russian Federation asks the RGC to Continue its efforts to combat poverty; ensure sustainable development; improve access to health care and education; and achieve the Millennium Development Goals. Recommendation 76 suggests the RGC Intensify its public expenditure on the implementation of economic, social and cultural rights (Netherlands); continue efforts in allocating more resources to ensure the betterment of economic and social rights of citizens, in particular in the areas of poverty reduction, urban-rural equality, education, public services, etc. (Viet Nam); carry out the necessary efforts to increase expenditures for social programmes, particularly relative to education and access to housing (Mexico); further increase its national spending on health and education sectors to meet the targets of the Millennium Development Goals (Azerbaijan). 12. While there has been some improvement in health care in Cambodia since 2009, the sector remains severely underfunded and understaffed. This has a wide-ranging impact on all aspects of health care, including sexual health and on the prevention and treatment of sexually-transmitted diseases (STDs). Moreover, the failure to provide comprehensive and integrated health services is a violation of individuals right to attain the highest possible standard of physical and mental health. 13. The 2012 Health Service Delivery Profile, compiled by the World Health Organization and the Cambodian Ministry of Health, notes that in 2010, only 43% of health centres provided the full minimum package of services [and that] constraints include the absence of key personnel, the inadequacy of essential drugs support and the absence of other operational guideline requirements. 7 Gyneco-obstetric issues remain at the top of the list of the top-ten leading causes of morbidity in Cambodia The continued limitations of the education system in Cambodia including at the university level and of adequate training opportunities for health care workers results in large segments of the health sector being unable to provide adequate care and counsel. For instance, a study conducted by APN+ found that many women with HIV said they were given misinformation by health care workers at the time of their diagnosis. One woman interviewed by APN+ was warned of the virus switching between her and her husband See paragraph 9, regarding 1 st cycle UPR recommendation #12 and #76. World Health Organization, Health Service Delivery Profile: Cambodia 2012 (2012) < Ibid. Asia Pacific Network of People Living with HIV, Positive and Pregnant How Dare You (2012). 177

182 15. The criminalization of prostitution through the LHTSE has had significant negative impacts on health care for sex workers and in particular on HIV prevention. Sex workers are no longer as easily identifiable and targetable by health workers, due to the closure of many brothels and of increased risks of police harassment. Moreover, police have been reported to use possession of condoms as evidence of prostitution, which has resulted in many sex workers stopping to carry condoms and less NGOs being willing to distribute them PLHIV in Cambodia are particularly threatened by deficiencies in the health care sector. Discrimination against PLHIV remains a regular occurrence, especially in the health sector, where a lack of appropriate training results in many health workers being under-qualified to appropriately treat, counsel and refer PLHIV to other health-care providers. In turn, this results in many PLHIV being afraid to disclose their HIV status to health professionals and family members. 17. The study conducted by APN+ on pregnant HIV-positive women found that many women in Cambodia face discrimination after disclosure of HIV status to in-laws, who often blame the woman for bringing HIV into the family. Several women admitted not disclosing their HIV status to their gynecologists because of fear of discrimination and refusal of services. 35% of women interviewed had been encouraged to consider sterilization, usually by a gynecologist or HIV clinician, and in some instances, by members of home-based care teams, because of their HIV status The lack of adequate sexuality education in Cambodia results in many being unaware of the health risks and of the health care services available. A primary reason for this is cultural taboos in Cambodia, which result in almost no discussions of SRHR within the family. Young people receive almost all of their knowledge on SRHR from the media and their peers, which are often unreliable sources of information. Despite the development of a national Comprehensive Sexuality Education (CSE) curriculum to be implemented in schools throughout the country, sexual education in school remains extremely rare. The CSE curriculum has been implemented in very few instances; teachers remain reluctant to discuss SRHR in the classroom and little time is allocated for sexual education classes Center for Health and Gender Equity (CHANGE) & Center for Human Rights and Humanitarian Law at American University Washington College of Law, Human Trafficking, HIV/AIDS, and the Sex Sector: Human Rights for All (2010) < Sector.pdf> 31. Asia Pacific Network of People Living with HIV, Positive and Pregnant How Dare You (2012). 178

183 19. The stigma associated with being LGBT which is perpetuated by families, communities, local authorities, employers and health services workers deters many LGBT Cambodians from regularly accessing available health services. Data, however, suggests that LGBT, and in particular men who have sex with men (MSM), are at greater risk of HIV transmission and thus of sexual health services. In 2010, HIV prevalence among MSM on a national level was estimated at 2.1%, 12 as opposed to 0.7% in the general population. The following section deals specifically with the stigma and discrimination faced by those with diverse sexual orientations and gender identities, focusing on the contexts in which their human rights are violated. Discrimination Based on Sexual Orientation & Gender Identity 20. Many lesbian, gay, bisexual and transgender (LGBT) people in Cambodia are not able to live as they would like to due to both social stigma and internal family pressures. Many parents do not dare support their children publicly for fear of social stigma. Coming out to their families is often a very negative experience. Parents sometimes disown their children afterwards, cutting them off from emotional and financial support, which often drives young people onto the streets, where they face hunger, homelessness and vulnerability to further abuse by strangers and law enforcement officials. Social misconceptions lead some parents to believe that being gay is a mental illness and can be cured by taking their son or daughter to the traditional doctor ( groukhmer ) to throw water on their child and cure their homosexuality Young people in Cambodia also face enormous pressure to marry from both their family and society which often adds to the difficulties that LGBT people face in freely expressing their sexualities and gender expressions and identities, which leads them to hide or suppress them. In many cases, this pressure leads to gay men marrying and still engaging in homosexual activities According to a 2000 study by Family Health International, nearly nine percent of men who identified themselves as men who have sex with men (MSM) were married. 15 Information pertaining to discrimination experienced by lesbian and trans women is lacking, in part because female to female HIV transmission remains low. 22. Although there is a growing gay scene in the urban centers of Cambodia, the impacts are not felt by all members of the LGBT community, especially for those outside of the main urban centers, and discrimination within the wider community continues. Hate crimes, motivated by victims SOGI, remain common in Cambodia. Despite a lack of quantitative data, there are many reports of gangsters attacking LGBT people who gather in parks, as well as reports of forced sex, especially against those who are transgender or have long hair UNDP, Country Snapshot Cambodia HIV and men who have sex with men, (December 2012) < Cambodian Network Men-Women Development & CCHR Workshop (Phnom Penh, 18 December 2011), in CCHR, Rainbow Khmer: From Prejudice to Pride (Report) (December 2012) < CCHR, Rainbow Khmer: From Prejudice to Pride (Report) (December 2012). Family Health International, Sexual behavior, STIs and HIV among men who have sex with men in Phnom Penh, Cambodia 2000 (2000) < 179

184 23. There are also multiple reports from LGBT Cambodians of harassment by the authorities and evidence of misuse of laws and policies to discriminate against and target LGBT people. The Village Commune Safety Policy (VCSP) focuses on security and public order, and requires local authorities to eliminate all forms of crime in villages and communes with specific reference to illegal drugs, prostitution, human trafficking, domestic violence, gang activity, illegal gambling and illegal weapons. However, this policy is being used as a means to suppress and control the Cambodian population in rural areas and provincial towns and villages, by empowering and authorizing police and local authorities to minutely scrutinize the lives of Cambodian people and to target suspicious people, in severe contravention of their fundamental rights and freedoms. According to accounts from LGBT networks in the provinces, the VCSP is being used particularly to target LGBT people, who are more vulnerable than many due to the fact that they often have no option but to congregate in dark and inconspicuous parts of towns, such as unlit parks, in an attempt to avoid the attention of their families and the authorities. Due to pervasive discrimination and negative stereotyping, the authorities generally assume that such groups of LGBT people are sex workers, engaged in soliciting and prostitution, when often they are simply socializing and expressing themselves freely in as discreet a manner as they can. 16 This puts LGBT Cambodians are risk of aggressive and discriminatory treatment by law enforcement and in some cases, criminal prosecution. 24. Discrimination against LGBT people in the workplace continues to be commonplace in Cambodia. The Cambodian Labor Law, enacted in 1997, failed to make explicit mention of SOGI as grounds on which discrimination is prohibited. Article 12 provides for equality in the workplace but does not effectively and explicitly protect LGBT people. The lack of specific prohibitions of discrimination in the workplace against LGBT people leads to LGBT people regularly being denied jobs because of their physical appearance and perceived sexual orientation. In turn, many LGBT people are forced to turn to sex work in order to make ends meet. 25. Moreover, as a result of the LHTSE (which shut down the brothels in which many LGBT individuals were working) has had a disproportionately negative impact on LGBT people. Many of the LGBT sex workers were forced to take to the streets and engage in criminal activity to support themselves, as they found themselves deprived of income as a consequence of the implementation of the legislation. 16 CCHR, Rainbow Khmer: From Prejudice to Pride (Report) (December 2012). 180

185 Recommendations 26. Recommendations to the RGC in support of Cambodians access to: quality health care services, improved quality of health through strengthened access to sexual and reproductive health information and services, and reductions in the stigma and discrimination experienced by LGBT people: a. The Ministry of Health should introduce rights-based, non-discriminatory guidelines and trainings for health workers to better protect the healthcare, human rights and needs of Cambodians, specifically LGBT people and PLHIV; b. In its Strengthening and Expanding the School Health Promotion Program, the Ministry of Education should ensure the full implementation of comprehensive sexuality education that is accessible to all young people, is rights-based, nondiscriminatory and includes specific strategies to address negative gender stereotypes and harmful cultural traditions. c. The National Assembly should work towards an amendment of the other status provision stipulated in the Constitution so that it includes specific reference to SOGI as a ground for prohibiting discrimination. Specific legislation should eliminate stigma and discrimination experienced by LGBTI individuals in the workplace; d. The National Assembly should amend the Cambodian Labor Law 1997 to include a provision to protect people from SOGI-based discrimination; e. The National Assembly should amend the Constitution and the Law on Marriage and the Family to allow for same-sex marriage; f. The Ministry of Interior should produce an implementation guide of the VCSP so that local authorities can follow it clearly; and g. The National Assembly should decriminalize sex work and legalize brothels, in order to reduce negative health outcomes, stigma and discrimination experienced by sex workers. h. The RGC should develop and implement a cross-sector strategy aimed at sensitizing police and law enforcement officials to the needs and realities of marginalized individuals; specifically sex workers, PLHIV and LGBT people. i. The RGC should ensure all above-mentioned policies are fully funded and implemented throughout the country. 181

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