OHCHR Field Office CAMBODIA QUARTERLY REPORT Third Quarter of 2005 1 At the end of June, the Special Representative of the Secretary-General for human rights in Cambodia issued an additional annex to his November 2004 report on land concessions from a human rights perspective which brought together available information on a land concession granted to Wuzhishan L.S. Group in Mondulkiri province and the impact of its activities on the livelihoods and rights of the Phnong indigenous people, which make up over half the population of the province. On 5 July, he issued a public statement calling for the cancellation of the concession, and for no more concessions to be granted until key sub-decrees to implement the 2001 Land Law are adopted and in effect. On 16 August, the Special Representative issued a public statement in which he criticised the outcome of trials in the cases of trade union leader Chea Vichea, who was shot dead in Phnom Penh on 22 January 2004, and of Cheam Channy, a parliamentarian of the opposition party, who was arrested on 3 February 2005 and charged with fraud and withof having organised an illegal armed force, hours after the National Assembly voted to lift his immunity. The immunity of Sam Rainsy, the leader of the opposition party and Chea Poch, another party member was also lifted that same day and both left the country immediately. The Special Representative said the criminal investigations and court hearings in the two cases lacked any credibility. He re-iterated his earlier calls for a thorough, impartial and credible investigation into the murder of Chea Vichea and for the prosecution of those responsible, and for Cheam Channy s immediate release and the restoration of his immunity. He also re-iterated Cambodia s need for an independent, impartial and trustworthy judiciary, and expressed concern that the courts were increasingly being used as an instrument of the executive to silence opposition voices. The Special Rapporteur of the Commission on Human Rights on adequate housing began a mission to Cambodia on August 23 at the invitation of the Government. The scope of the mission included the general situation of housing; women and housing rights; the Phnom Penh Master Plan 2020 and national housing policy; forced evictions; involuntary relocation/resettlement; expropriation without fair and just compensation; and land swaps which have become an ever more critical problem in Phnom Penh and in other urban areas, such as Siem Reap and Poipet. Political and human rights developments The case of Chea Vichea On 1 August, the Phnom Penh Municipal Court found Born Samnang and Sok Sam Ouen guilty of the murder of Chea Vichea. They were sentenced to 20 years imprisonment, and ordered to pay compensation to the family of Chea Vichea. Both defendants had been held in pre-trial detention since their arrest on 26 January 2004, with all requests for bail rejected. The case has been marked throughout by serious irregularities which the Special Representative drew attention to in his report to the 61 session of the Commission on Human Rights. The prosecution failed to present any evidence linking the defendants to the crime during the trial, and disregarded fundamental principles of fair trial, such as the presumption of innocence and the impartiality of the court. The prosecution s case against both defendants rested entirely on Born Samnang s initial confession which he has long recanted. With the exception of police officers who denied defendants claims that they were coerced into making confessions and statements, other crucial witnesses for the prosecution failed to appear before the court. The judge instead ordered witness statements from the investigation files to be read out in the court, thereby introducing evidence that could not be challenged by the defence. 1 This report covers developments from end of May to 26 August 2005 as monitored by the Cambodia office.
The verdict caused widespread consternation and dismay. Chea Vichea s family refused to accept the compensation, said that the two men were innocent of the crime, called for continued investigation into the murder, and for the prosecution of those responsible. King Father Norodom Sihanouk issued a statement in which he said that there had been a grave miscarriage of justice, which one day he hoped would be acknowledged. Other statements of concern included statements from trade Uunions, the ILO in response to media questions, and the Cambodian Human Rights Action Committee. Born Samnang and Sok Sam Oeun have appealed to King Norodom Sihamoni to grant them a royal pardon, and await his response to decide whether to appeal the verdict. Their families have also written to the Prime Minister to bring their concerns for their sons to his attention. The case of Cheam Channy and Khom Piseth On 8 August 2005, the Military Court sentenced opposition party parliamentarian, Cheam Channy, to seven years imprisonment, and Khom Piseth to five years imprisonment. 2 They were found guilty of committing acts punishable under Article 36 ( organized crime ) for having organized an illegal army and Article 45 ( fraud ) of the 1992 Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia during the Transitional Period (UNTAC Law), in connection with Article 6 (3) and Article 42 of the Law on Political Parties. Under Cambodian law, the Military Court has jurisdiction only over military offences committed by military personnel. 3 The Office of the Military Public Prosecutor therefore lacked the required jurisdiction to issue an arrest warrant, and the Military Court had no jurisdiction to try Cheam Channy, a civilian, either under national or international law. Cambodia is a State party to the International Covenant on Civil and Political Rights, and the Human Rights Committee has taken the firm view that the jurisdiction of military courts should be limited to offences which are strictly military in nature and which have been committed by military personnel. The conduct of the trial raised serious doubts about the impartiality of the court and the presumption of innocence. The lawyers for the defence were prevented from questioning all witnesses for the prosecution. They were not allowed to call their own witnesses, and their questioning of the defendant was interrupted for no apparent reason. The judge interfered repeatedly when a witness made statements that might have been detrimental to the case of the public prosecutor. No evidence was provided by the prosecution to substantiate the charges that both defendants had created an illegal army. On 10 August, the US Department of State issued a statement of concern in which it condemned the conviction, and said that the conduct of the trial again raised questions about the competence and independence of Cambodia s judiciary and constituted further intimidation of opposition voices. The European Union, in a statement of 19 August, regretted the way the trial was conducted, the nonobservance of the defendants legal rights, and the lack of an effectively functioning judiciary in Cambodia. It underlined the importance of a clear separation of powers. It urged the Government to allow all political parties to operate without hindrance or intimidation. The Military Court subsequently announced that it was considering whether the leader of the Sam Rainsy Party should be prosecuted on similar charges, and the Prime Minister publicly stated that the case would not finish with the sentencing of Cheam Channy. Chea Poch, who returned to Cambodia on 15 August, was immediately summoned for questioning on charges of criminal defamation on 31 August by the investigating judge of the Phnom Penh Municipal Court. The Military Court also started investigating a request by the commander of the Prime Minister s Bodyguard Unit to bring defamation charges against an opposition newspaper, Moneaksekar Khmer, for alleging his involvement in the 1997 grenade attack on a Sam Rainsy Party rally in Phnom Penh, in which at least 2 Khom Piseth was granted refugee status in a third country and was tried in absentia. 3 Article 11 of the UNTAC Penal Code and Article 9 of the Law on the Organisation and Activities of the Adjudicative Courts of the State of Cambodia. 2
15 people were killed and about 150 injured. Sam Rainsy announced in August that he would return to Cambodia on September 14. The Bar Association The Bar Association also came into renewed difficulties during the reporting period, and criminal charges are now pending over 12 members of the Bar Council. The Association s functioning and independence have been badly affected by a long running dispute over the outcome of elections for the presidency of the Association following elections in October 2004 when the Bar elected an independent lawyer, Suon Visal, as its new president. On 2 June the Supreme Court abrogated on procedural grounds an Appeal Court judgment of 19 November 2004 which annulled the elections and set a three-month period for new elections. The Supreme Court remanded the case for re-trial. Following the Supreme Court s decision, 11 of the 19 Bar Council members, including Suon Visal, confirmed Suon Visal as president and requested the former president to return the Association s seal. When he failed to do so, the seal was replaced. On 27 June, the Office of the Public Prosecutor immediately acted on a complaint received that same day from the former president and several Bar Council members accusing Suon Visal and his clique of forgery of the seal and unauthorized use of the Association s letterhead, and requesting they be charged, punished and ordered to pay compensation for any damage incurred as a consequence of their illegal activities. Suon Visal was summoned and was questioned by the Chief Prosecutor on 30 June. On 4 July, his supporters wrote to the Prime Minister asking for his help, as well as to the Minister of Justice asking him to dismiss the criminal charges. On 5 July the Cambodian Human Rights Action Committee issued a statement criticizing the prosecutor for turning an administrative matter into a criminal affair. On 18 July, the International Bar Association voiced concern about the dispute. On 26 July, the Appeal Court issued an interlocutory order reinstating the former president, a decision that appears to be in conflict with the Supreme Court ruling. In response to questions from the media, the Cambodia office stated its view that the dispute is internal to the Bar Association, that it should be adjudicated by the civil court system, that all criminal charges should be dismissed, and that the Appeal Court should re-try the case. On 29 July, the Japan Federation of Bar Associations, the Canadian Bar Association and the American Bar Association issued a joint statement in which they emphasized that this dispute should be resolved through internal bar actions and by civil litigation. At the time of writing, the Appeal Court had not announced the date for the re-trial. The crime of forgery carries a compulsory sentence of 5 years under the UNTAC Law. Illegal logging and Global Witness On 18 July, the Phnom Penh-based adviser of the non-governmental organisation, Global Witness, was denied re-entry into Cambodia and his visa was revoked. Immigration officials confirmed that he had been banned along with four other international Global Witness staff -- the director of Global Witness in Cambodia and three directors in London, UK, where Global Witness is based. The banning was apparently in accordance with a letter issued by the Ministry of Foreign Affairs dated 28 June. Cambodians seen to be associated with Global Witness also came under repeated harassment following the banning. NGOs and others have voiced concern about these developments. Global Witness documents and reports on illegal logging and corruption in Cambodia. In February 2005, customs officials impounded two thousands copies of its report, Taking a Cut, issued in November 2004, which documents illegal logging and corruption in Aural Wildlife Sanctuary. Many are of the view that it would be more in keeping with stated Government policy to fight corruption and to stop illegal logging if the Government were to conduct an inquiry into the findings of Global Witness and to take steps to implement its recommendations, where appropriate. Mondulkiri province and the Phnong indigenous people Wuzhishan L.S. Group, a joint Chinese Cambodian venture, was granted a concession in Mondulkiri province for a pine tree plantation on 9 August 2004, initially for 10,000 hectares as a pilot project, with a promise of 189,999 hectares to come, subject to certain conditions. The company s activities have provoked mounting protests from Phnong indigenous villagers which on June 16 culminated in a demonstration of some 650 villagers asking for the company to leave and for their land back. The 3
Council of Ministers issued an order suspending the company s activities pending a probe into complaints. On 7 July, hundreds of Phnong protested for the second time in the province s capital when they saw that the company continued planting, and to await King Sihamoni who was to commemorate National Forest Day on 9 July in Mondulkiri, an annual event commemorated throughout Cambodia. Some 500 Phnong participated in a tree planting ceremony, during which the King planted a native tree species, and expressed his concern for the plight of the villagers. In mid- July, a working group from the Ministry of Agriculture, Forestry and Fisheries conducted a survey of the concession land which showed that the company had already planted, or prepared for planting, oversome 16,517 hectares of land, and had encroached on villages and graves. It also became apparent that the company had encroached on land that the Government had already been given to a Japanese company, Marubeni, for a rubber plantation and on land which is part of the biosphere conservation area. On 27 July, the Council of Ministers issued an order to resolve the situation that will be difficult to implement in practice. The Order states that the Wuzhishan L.S. Group shall be allowed to restart planting only after all the affected community lands, including farmland, spirit forests and burial areas have been demarcated and returned to the community. On August 18, the company reported to NGOs that it had restarted planting, apparently with the Government s approval. In late August, the provincial authorities began measuring the land area for the company and to erect posts in accordance with the Order. Villagers were not present, as their demands had not been met. To date demarcation of community lands has not been completed since some areas remain in dispute. Villagers have also complained of coercion by the authorities. Freedoms of Association and Assembly Restrictions on freedoms of peaceful assembly and association continued. Since the anti-thai riots on 29 January 2003, demonstrations and public gatherings in Phnom Penh have been routinely denied permits, and gatherings and demonstrations in the provinces have been similarly prevented. In early June, the Prime Minister warned those who participate in public forums that they should be careful and that the authorities could not be blamed if the public became irate and took matters into their own hands. Public forums and meetings were disrupted by thugs and local authorities on several occasions during the reporting period, among them Open Forum events organized by the Cambodian Centre for Human Rights. On some occasions, authorities tried to prevent the forums from taking place. On other occasions, local troublemakers caused mayhem during the meetings. On 24 June the Ministry of Interior issued a new set of guidelines for the functioning of the commune councils which, according to the guidelines, are aimed at ensuring the sustainability of work, as well as local stability, and at implementing the decentralization process successfully and smoothly. The guidelines stipulate that written permission is required from the provincial and city governors for the implementation of activities at the local level in order to have better cooperation in supporting the commune councils. Non-governmental organisations and associations have to cooperate with the provincial/city governors in all their activities. Missions and invitations to provincial, city, district, and commune council officials for a study tour, participation in a workshop, and other training activities both in and outside Cambodia, need to have permission from the city/provincial governors. The guidelines came to the attention of non-governmental organisations and the Cambodia office attention only in the second part of August. They may explain why Phnong villagers from Mondulkiri province were initially stopped from leaving their province on 7 August, and had to obtain authorisation from the police to attend an official event in Phnom Penh to commemorate International Day for the World s Indigenous Peoples on 9 August. Asylum Seekers and refugees In January 2005, the Governments of Vietnam and Cambodia and UNHCR signed a Memorandum of Understanding. In accordance with the MoU, indigenous minority people from the Central Highlands of Vietnam seeking asylum in Cambodia would either be resettled to a third country, if accorded refugee status, or be sent back to Vietnam, voluntarily or involuntarily. On 20 July, the Government deported to Vietnam 94 asylum seekers whom UNHCR had determined not to be refugees. OHCHR staff were not allowed through the roadblocks set up by the police and therefore could not be present 4
at the actual deportation. NGOs who did witness the event raised concerns about the use of excessive force and the use of electric shock batons during the deportation. Human Rights Watch issued a statement condemning the deportation on 25 July. This statement was followed by a UNHCR press briefing on 29 July during which UNHCR stated that proper restraint had been used. The Government announced on 26 July that it would deport back to Vietnam in a month s time refugees that have been recognised by UNHCR, but have refused third country resettlement. This deadline has now been postponed to 9 September. At the time of writing, 37 people have been rejected refugee status, two in the first instance, 17 of whom are being considered by resettlement countries as humanitarian cases. 334 recognized refugees are awaiting resettlement to a third country. Six recognized refugees are not willing to be resettled to a third country. 18 recognized refugees want to return to Vietnam. 40 recent asylum seekers were awaiting the decision on their refugee claim. Indigenous Peoples Day International Day for the World s Indigenous Peoples on 9 August was commemorated for the first time in Cambodia at an all day event organized by the Ministry of Rural Development with support from ILO and UNDP in which representatives of indigenous peoples from throughout Cambodia participated. The Cambodia office made a statement on the occasion, as did ILO, UNESCO and UNDP. The Ministry held a subsequent two-day workshop on 11 and 12 August to further develop policies towards Cambodia s indigenous peoples. Trafficking In June, the USA downgraded Cambodia from tier 2 to tier 3 on its global anti-trafficking list. Tier 3 can result in sanctions. To avoid sanctions, Cambodia is required to reach specific targets within 60 days, starting from 3 June. These include progress in the prosecution and conviction of traffickers and in the reduction of trafficking related corruption by officials, for the Government to support the anti trafficking department of the Ministry of the Interior and raids at trafficking outlets, and for the closing of establishments which offer victims of trafficking for sale. Whether the targets have been met has not been announced yet. The approach taken raised some concerns that the targets might unwittingly undermine the rule of law and independence of judiciary. Cambodian Freedom Fighters Cambodian Freedom Fighters (CFF) leader, Chhun Yasith, was arrested in California on 1 June 2005. In early July, the press reported that an FBI official had recently visited Cambodia to discuss the case with the Cambodian authorities. Child adoption On 4 July, the UK s High Court upheld the decision to ban adoptions from Cambodia. The UK suspended adoptions from Cambodia in June 2004 on grounds that the process involved falsified documents, illegal facilitators and prevalence of child trafficking. Programme Activities Protection In addition to monitoring the overall situation, and responding to complaints, staff worked on several cases of concern, including many of those mentioned above, and requested local, provincial and national authorities to take corrective action. Other cases taken up included: The case of attempted murder of two forest community activists in Tum Ring commune, Kompong Thom province. 4 On 10 July Kok Heang (also known as 95), who heads a group of company security guards in Tum Ring, shot at and threatened to kill a district forest community leader. Later a group of gunmen fired several shots into the house of a local community activist, narrowly missing him and his family. Both victims sought safety outside Tum Ring. The Office 4 See Annex on Tum Ring to the Special Representative s November 2004 report on land concessions 5
has asked the provincial and national authorities to intervene, to conduct a formal investigation into the incidents, and to disarm Kok Heang and his security guards. The president of the Highlanders Association in Ratanakiri province, which promotes understanding among indigenous communities about their rights under the law, came under serious threat in July. In March, the authorities threatened to close the Association after protests by local people against a land concession company. On the night of 16 July two men walked into Dam Chanthy s farmhouse, fired shots at a couple staying there, and said they had come to kill her. Police identified one of the perpetrators who shot and killed one police officer when the police tried to arrest him. He was later shot dead in a confrontation with the police. Dam Chanthy immediately sought safety outside Ratanakiri. The Office is continuing to investigate this case. Staff met with officials from the Ministry of Interior, including the Prison Director, to discuss several matters of concern in the aftermath of the attempted prison escape on 23 March from CC3 prison in Kompong Cham, in which at least 17 prisoners were reported to have died during the escape and two thereafter, and at least 11 others were seriously injured. Points discussed included the need for an independent inquiry, for access to the prison and prisoners by non-governmental organisations working with the authorities to improve prison conditions, and for the authorities to make public a list of those who died during and after the attempted escape. In 22 June, the Kandal court sentenced two taxi drivers to a one-year suspended prison sentence and five years probation for incitement in a protest in January 2005 against a toll price raise by A-Z Company on National Road 4 which office staff monitored. The two taxi drivers were peripheral to the protest. On 24 June, the Pursat Provincial court finally dropped charges against Vaen Hul, a poor farmer accused of attempting to murder a Chinese employee of Pheapimex Company during protests against renewed activities of the company in November 2004. The Office has closely documented this case since the farmer s arrest in December 2004, and was of the view that he was entirely innocent of the charges against him. The regional office in Battambang continued to monitor and to help resolve land disputes in the region, focusing on those cases where poor farmers clash with present and former military officials and soldiers. One such case concerned a dispute in Chakrey commune where the military said the land was given only temporarily to the families, while the families said that they had spent eight years clearing and cultivating the land. The dispute was eventually resolved with agreement to pay compensation to the families. Another case, which the Office has been following for more than a year, concerns a group of 112 families on the one hand and 46 families on the other in Lovea commune. Neither of the two parties actually own land titles, and therefore the dispute is being dealt with by the Cadastral Commission, also the only institution that can take a preliminary decision as to who can use disputed land until a solution is found. However, the Provincial Governor issued a decision on 28 July 2004 granting the 46 families the right to use the land until a final resolution of the case is found. This decision was then used to justify criminal charges against 21 people from the party of 112 families, including for rice robbery, destruction of private property and infringement of private property. In one case, seven persons were sentenced to seven years imprisonment on 30 March 2005, and await their hearing at the Appeal Court. In another case, the Appeal Court in a hearing on 18 July 2005 dismissed charges against nine persons following a non-suit order by the investigating judge, which the prosecutor appealed, that the land dispute is being dealt with by the Cadastral Commission. The nine have now been released after most had spent more than seven months in pre-trial detention. However, criminal charges remain pending against some of the nine and others of the party of 112 families. On 4 August, the Battambang court dismissed all charges, except against one military policeman who was granted pre-trial release, in the case of the forced eviction in Poipet on 21 March 2005, 6
during which five villagers were shot dead and some 40 others were injured. The eviction followed a Court of Appeal decision order which granted ownership of six hectares of land in Kbal Spean, inhabited by 218 families, to the village chief. In April, 118 people civilians, police and military police -- were charged with murder, attempted murder, voluntary manslaughter and battery with injuries. On 11 August the provincial governor of Banteay Meanchey signed a letter authorizing the relocation of the villagers, who returned to disputed land in April, to a plot four kilometres away which the villagers have refused. The Cambodian Human Rights Action Committee has conducted a thorough investigation into the eviction and is to release its report at the beginning of September. The Special Rapporteur on the right to adequate housing visited Poipet on 25 August to look into the forced eviction and to meet with the villagers in an effort to find a just solution. The Office closely monitored the situation of the Phnong indigenous people in Mondulkiri throughout the reporting period, and regularly brought its concerns to the attention of both the provincial and national authorities. In July the provincial authorities sought to oblige local associations and NGOs to report on their activities and movements inside and outside the province. In mid-august, the Office wrote to the Governor to bring to his attention Chapter III of Cambodia s Constitution which sets down the rights and obligations of Khmer citizens, including to freedoms of movement, assembly and expression, the International Covenant on Civil and Political Rights which also guarantees these rights, as well as to the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. Technical Co-operation Land and natural resources The Office continued to follow up on the recommendations of the Special Representative with regard to economic land concessions. At the meeting of the Consultative Group for Cambodia in December 2004, donors and the Government agreed on joint monitoring indicators to measure progress in several areas of relevance. Progress has been reviewed through quarterly meetings of a Government Donor Coordinating Committee. At the review meeting in mid-june, it was decided to bring to the Prime Minister s direct attention the difficulties in meeting indicators agreed upon to improve rural livelihoods and the management of Cambodia s land and natural resources, most importantly the immediate and full disclosure of information on all concessions, including military development zones and mining concessions. A closed meeting took place between donors and the Prime Minister on June 30. The World Bank and the Ambassadors of Germany and Japan made statements that were subsequently placed on public record. The Ambassadors voiced concern about lack of progress in meeting the monitoring indicators, underlining the importance of immediate disclosure of information on concessions, and of the sound and transparent management of land and natural resources for Cambodia s social stability and economic growth. On I July, the Government issued a circular on granting Economic Land Concessions in the Framework of Implementing the Order on Strengthening the Management of State Property, of June 13 2005, stating that the Government permits the granting of economic land concessions of less than 10.000 hectares to investors who have already invested capital subject to certain specified conditions. Deputy Prime Minister Sok An issued a note on the result of the June 30 meeting, dated 6 July, informing that the Government had assigned responsibility to the Ministries of Agriculture, Forestry and Fisheries and Land Management to prepare a report regarding economic land concessions including information on their size and location, the name of the company, the concession period, and other necessary points. The note further informed that the Government had decided to permit continued granting of economic land concessions without waiting for the sub-decree on economic land concessions. The granting of concessions would be governed by several conditions including: that it would not affect the land of farmers and any affected farmers land must be excluded from the project area; some land would be reserved to address local population growth in accordance with a 7
population growth of 2.4 per cent per annum; that citizens would benefit from the investment through getting infrastructure, roads, hospitals, irrigation canals, schools, etc. and could integrate their crops into the plantation and get jobs with the plantations or related processing factories; and finally that every agreement between the Government and the companies should contain the following provision: in case there are disputes on the land proposed for investment, the competent authority shall block the said land until its resolution and thereby protect the interest of the citizens. In case of land disputes between military unit and citizens, priority shall be given for the citizens. The indicators agreed to in December also require full disclosure of information on military development zones and mining concessions. However, this information has not yet been provided by the Government. The next review meeting will be on September 15. Justice sector The Office continued to focus on measures to promote the independence of the judiciary, to reduce irregularities in the courts, and on the adoption and implementation of essential laws consistent with international standards. The Office monitored several trials and court hearings during the reporting period, and also provided advice on due process rights and trial procedures to ensure compliance with human rights standards. Serious irregularities were recorded in the handling of some cases. The trials of Chea Vichea and Cheam Channy were of particular concern. Enactment of key laws At the Consultative Group for Cambodia meeting in December 2004, the Government agreed that the Council of Ministers would adopt the drafts of eight key laws and submit them to the National Assembly before the end of the year, that the laws would be consistent with Cambodia's Constitution and international best practice, such as reflected in international human rights treaties; and that they would be prepared through a satisfactory participatory process. The laws are the Penal Code; the Code of Criminal Procedure; the Civil Code and Code of Civil Procedure; the Organic Law on the Organization and Functioning of Courts; the Law on the Amendment of the Supreme Council of Magistracy; the Law on the Status of Judges and Prosecutors; and the Law on Anti-Corruption. Most of these laws have been on the agenda for the last decade.. In August, the Ministry of Justice gave particular attention to the draft Law on the Organisation and Functioning of the Courts which was revised by the Council of Jurists in June 2005 and returned to the Ministry of Justice for further revision. The law will establish the basic structure for the court system in Cambodia, define the jurisdiction of each court, and establish the basic procedures for their functioning. The draft envisages establishing an Administrative Court. Judicial review of public administration is a fundamental aspect of the rule of law, and requires that all actions of the administrative authorities, at all levels, may be contested in court by means of a simple and suitable procedure. With legal control over administrative acts being its main task, the draft law needs to ensure that the Administrative Court is independent of the executive, notably in the decision-making process. To be effective, the review of administrative acts should be carried out by independent, impartial and qualified judges who are familiar with the structure and workings of the authorities and who have sufficient authority to impose their decisions on government bodies or individual ministers. The current draft raises concerns about the independence and impartiality of the court, since Administrative Court judges would have to be exclusively selected from the Council of Jurists, an organ of the executive branch of government under the chairmanship of the Minister for the Council of Ministers. Judges would be disciplined by a specially created Disciplinary Commission, of which the Minister for the Council of Ministers is co-chair, and in which representatives of the government are in the majority. Another area of concern is the vaguely defined jurisdiction of the Administrative Court. The proper administration of justice presupposes that responsibilities are clearly divided among the courts and that administrative disputes are not scattered among different courts. Only the authorities as such should be subject to administrative review, not companies, associations or civil servants individually. 8
The draft law also envisages the expansion of the jurisdiction of the Military Court, and provides the Military Court with the mandate to try civilians in cases that are related to national security. The stipulation of such broad and unspecific jurisdiction for the Military Court stands in stark contrast to concluding observations and recommendations issued by the Human Rights Committee which, as mentioned above, has taken the firm view that the jurisdiction of military courts should be limited to offences which are strictly military in nature and which have been committed by military personnel. Staff prepared a note on the jurisdiction of military courts which it distributed to the Military Court authorities and the law drafting committee. Staff also closely monitored proceedings related to the proposed amendments of Articles 128-135 of the Constitution which constitute the entire chapter on the judiciary. Corruption, accountability and freedom of information The Office continued to follow and contribute to efforts to address corruption, increase accountability and to promote access to information held by the public authorities. At the Consultative Group meeting in December, the Government undertook to take concrete actions to fight corruption, to attack its roots, and to increase accountability. These include bringing reported cases of corruption, within existing law, before the courts for investigation and hearing; employing a consistent and strategic approach to the prosecution of corruption cases; collecting data to monitor progress; and enacting an anti-corruption law before the end of 2005 which would comply with international best practice, such as reflected in the United Nations Convention against Corruption. The Special Representative has recommended Cambodia take steps to become party to the Convention. The most critical flaws in the existing draft of the Anti-Corruption Law are that the anti-corruption body envisaged in the law is not a functionally independent authority with an autonomous mandate to carry out investigations, and that it is subject to control by the Supreme National Council on Anti- Corruption which shall control and direct it. As presently envisaged, the members of the Supreme National Council will be chosen by national institutions that are open to political influence. Civil society representatives should be represented in the Council, and should also fully participate in the drafting of the law. The Government also committed in December 2004 to begin preparatory work to establish a legislative framework, such as a Freedom of Information Law, to facilitate access to information held by public authorities. In the meantime, the public authorities would change current practice by displaying a preparedness to share information with the general public and with other institutions in Government. The Government has yet to begin drafting the relevant legislation, and to assign these tasks to any Ministry or Department. Trials of senior Khmer Rouge leaders The Office continued to maintain a watching brief on developments concerning the trials of Khmer Rouge leaders. The Government has still to find the $11.8 of the total of $13.3 million it has pledged as its contribution to the trials. On 31 May, Deputy Prime Minister Sok An said the government could only contribute $1.5 million, and appealed to Phnom Penh embassies for help. Japan has said that Cambodia can use development cooperation funds it has provided, but the Government has said that it will use these only as a last resort. Another option that has been suggested is an appeal to national sources for funding, although this has been rejected by the Government. Under the Agreement between the Government and the UN, the Secretary-General is to submit to the Cambodian Government a list of international judges and prosecutors, from which appointments will be made by the Supreme Council of Magistracy. On 30 June, the UN s Legal Counsel wrote to member states, inviting them to suggest the names of individuals the Secretary-General might nominate for appointment within 60 days. On 18 July, the UN s Comptroller wrote to the Government concerning the venue of the trials and other matters. On 25 August, the Secretary-General announced the appointment of Michelle Lee, as the Deputy Administrator of the Extraordinary Chambers. 9
The right to adequate housing During the reporting period, staff prepared for the mission of the Special Rapporteur of the Commission on Human Rights on Adequate Housing, Miloon Kothari. Training courses, public outreach and other activities During June and July, an external consultant evaluated the regional office s basic training courses on economic, social and cultural rights. This was a pilot project targeting areas marked by disputes over land and natural resources. Participants have included villagers and local officials, including health, education, cadastral officials, commune chiefs and the police at commune and district level. The Office will incorporate the consultant s recommendations into its future programmes. Staff in Phnom Penh provided several briefings on the general human rights situation and the work of the Office and Special Representatives. Culture and Rights The International Human Rights Internship Programme held an international workshop in Siem Reap, 22 to 25 August. The workshop brought together experienced human rights activists, practitioners and anthropologists from different regions of the world to discuss culture and rights and the development of more effective approaches on human rights issues where culture plays an important role. Cultural rights have been little explored by way of contrast to economic and social rights which have received increasing attention in the last decade and more. Yet, as the meeting noted, culture is central to human existence and human dignity, and human identity and sometimes survival can be at risk. For example, large numbers of local and national cultures are under threat from globalization; people are often expected to give up culture in the name of development ; culture is also being used within countries to provoke hatred, conflict, war, genocide. On the other hand, some traditional support systems provide a cushion against the ravages of the modern world. The definition of culture that UNESCO adopted in 1981 was used for the purposes of the meeting: culture should be regarded as a set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs. The non-governmental organisation, Fishing Communities Acting Together, arranged for participants to visit Prek Kantel, a floating village on the Tonle Sap Lake, which has existed since 1952, but which is now under threat from commercial fishing. The impact of large-scale plantations on the culture and livelihoods of local populations in Cambodia was also one of the case studies prepared for the meeting. Compilation of laws in Khmer The Office completed its fourth edition of the compilation of laws in Khmer which will be published in some 4,000 copies in September and will be distributed throughout Cambodia to local, district, provincial and national authorities, commune councils, and others. The volume includes revised translations of the international treaties Cambodia has accepted which are part of Cambodian Law, as well as revised or new translations of other important international instruments such as the Code of Conduct for Law Enforcement officials and Basic Principles on the Independence of the Judiciary. Administration Local staff began on one-year fixed term contracts with UNDP in July, and the terms of reference for local posts were finalized in appropriate format in August. International recruitment continued throughout the reporting period. 10
Programme implementation The Office's programmes were implemented in cooperation with government institutions with human rights responsibilities, including the courts; the Office of the Prosecutor General; the governmental Cambodian Human Rights Committee; the Department of Prisons; the Ministries of Justice, Interior and Land Management. The Office cooperated with and supported non-governmental and civil society organizations in their efforts to promote and protect human rights. The Office participated in relevant United Nations and donor co-ordinating mechanisms, and in activities and meetings of the United Nations Country Team. 11