Mr. Chairman, members of the committee, thank you for this opportunity to testify before you today, and warm greetings from Yangon, Myanmar.
My name is Kingsley Abbott, and I am a Senior International Legal Adviser with the International Commission of Jurists, known as the ICJ.
The ICJ, established in 1952, is an apolitical international human rights organization composed of 60 eminent judges and lawyers from all regions of the world, including two Canadians, former Supreme Court justice Ian Binnie and Judge Michèle Rivet.
The ICJ seeks to promote and protect human rights and the rule of law by using our unique legal expertise to develop and strengthen national and international justice systems.
I myself have lived and worked in Southeast Asia for nearly 10 years, including in Cambodia, and am currently based in Bangkok, Thailand, where I work at the ICJ's Asia office, and where, I should add, the Canadian ambassador to Cambodia is based, who has been markedly accessible, as was her predecessor.
I would like to address the committee on two issues. The first is the misuse of the law in Cambodia under the pretext of the rule of law, and the second is the lack of an independent and impartial judiciary. However, before I begin, I would like to add a little context, because I am sure my Cambodian co-witnesses will also add context.
Cambodia is currently in the grip of a human rights and rule of law crisis unprecedented since the signing of the Paris peace accords in 1991.
Since the last national election, the Cambodian government has scaled up its systematic closure of civic space and repression of fundamental freedoms in advance of the next elections in July of this year.
One of the government's key tactics in this crackdown has been to weaponize the law.
Specifically, the government has misused the law and the legal system to legally harass the political opposition, independent media, civil society, human rights defenders, activists, and individuals, in many cases for merely exercising their fundamental freedoms.
Of significance, when justifying its repressive actions and defending itself against both internal and external criticism, it repeatedly claims it is merely implementing the rule of law. Recent developments, I think, illustrate this point.
Last year a new law, passed in 2015 and named the Law on Associations and Non-Governmental Organizations, a law that places onerous registration requirements on NGOs and requires them to be politically neutral, was misused to shut down the U.S.-funded National Democratic Institute and expel its international staff and to temporarily suspend Equitable Cambodia, a land rights NGO. These are just two examples of the misuse of this law.
Local authorities all over Cambodia also frequently appeal to the law, demanding associations and NGOs receive permission from the authorities before conducting activities.
In August of last year The Cambodia Daily, an independent English-language newspaper, was presented with a tax bill for millions of dollars of allegedly unpaid taxes, which forced it to shut down.
In September 2017 the CNRP's leader, Kem Sokha, was arrested and detained following an early morning raid at his home. He was later accused of treason in a case that has all the hallmarks of being politically motivated, and he remains in detention to this day.
In November 2017, in a significant event, Cambodia's Supreme Court dissolved the CNRP and banned 118 of its politicians from political activity for five years in a highly politicized case. The president of the court himself, who presided over the hearing, is a high-ranking member of the ruling party and sits on both its standing and permanent committees.
The Law on Political Parties was amended shortly before these legal proceedings, allowing for the dissolution of political parties by the Supreme Court.
The decision makes a mockery of both the justice system and the upcoming elections, prompting the European Union to withdraw its support for the electoral process, saying it “does not believe there is a possibility of a credible electoral process”.
Just a few weeks ago, amendments to the Cambodian Constitution were passed. These amendments reportedly impose a duty on all Cambodian citizens to “primarily uphold the national interest and not conduct any activities which either directly or indirectly affect the interests of the Kingdom of Cambodia”, without any definition of what these vague notions mean or what actions might put somebody in legal jeopardy.
The government has repeatedly defended its actions under the guise of the rule of law, both at home and abroad, including before the Human Rights Council in Geneva.
Hours after the country’s Supreme Court dissolved the main opposition party, Prime Minister Hun Sen took to the television to announce that the decision was based on the principle of the rule of law. Last month the government put out a white paper justifying its repressive crackdown. It was entitled “Strengthening the Rule of Law and Liberal Democratic Process”. Just four days ago, in response to the announcement that the U.S. was suspending funding and calling for the release of political prisoners and the reinstatement of the CNRP, a government spokesperson was quoted as saying, “The U.S. is not our boss.... We stand very firm to protect what we call rule of law.”
Of course, this is not what the rule of law means. The ICJ has been working on defining the rule of law and making the link between it and the protection of human rights since the 1950s. What I have been describing is precisely the opposite of the rule of law, the three pillars of which are equality, accountability, and predictability. It does not mean just passing laws and holding people to them, but rather passing and implementing laws in a way that complies with international human rights law and standards.
The misuse of the law is of particular concern in Cambodia because of a lack of independent and impartial judges placing checks and balances on the executive and legislature. In a baseline study on Cambodia released by the ICJ in October of last year, the ICJ identified that the lack of independent and impartial judges and prosecutors was the single largest problem facing the Cambodian justice system. The problem is twofold: an endemic system of political interference in high-profile cases and an equally entrenched system of corruption in others.
Our study also found that the justice system is plagued by numerous other problems, including inadequate and unfair judicial investigations, trials, and appeals; coerced confessions and the lack of accountability and redress for such abuses; and identification of lawyers with the political agendas of their clients and targeting by the government of lawyers on that basis.
In conclusion, I would like to make four key recommendations to this committee.
First, Canada should send members of Parliament to visit Cambodia before the July elections. Second, Canada should continue to make strong appeals for the immediate reinstatement of the main political opposition party, the CNRP, and for the immediate release of Kem Sokha and all other political prisoners. Third, Canada should increase its support for Cambodian civil society, particularly at this time. Fourth, Canada should call upon Cambodia to repeal or amend all laws inconsistent with its international human rights obligations.