The Law as a Political Weapon
The Cambodian Government is not shy in using the law to suppress opposition voices and human rights defenders. In September 2017, the country’s vibrant free-press suffered a major blow with the closure of The Cambodia Daily following a disputed US$6.3 million tax bill imposed by the government. Shortly following this closure, a number of radio stations including the US-funded Radio Free Asia suspended their operations amid increasing suppression of media outlets. More than a dozen independent Khmer language radio stations broadcasting throughout the country had their licenses suspended without notice. The government shut down long-operating US-based NGO, the National Democratic Institute, claiming that it had breached the controversial Law on Associations and Non-Government Organisations. Cambodia’s Ministry of Foreign Affairs stated that the action was in the interests of strengthening the “rule of law” and Cambodia’s “national sovereignty”.
Cambodia has declined into a one-party authoritarian state following the Supreme Court’s November 2017 rule to dissolve the Cambodia National Rescue Party (CNRP). Following last year’s decision, Prime Minister Hun Sen of the ruling Cambodian People’s Party (CPP) delivered a televised statement in support of the dissolution stating that it was based on the principle of the “rule of law”, and that Cambodia was enforcing its “own law”.
This week marks the one-year anniversary since the leader of the opposition, Kem Sokha, was arrested and charged with treason in a midnight raid. Since then he has remained in pre-trial detention in the remote Tra Peang Plong prison near Cambodia’s border with Vietnam—some 300km away from the capital. Last week the investigating judge extended his detention for another 6 months. The Ministry of Justice’s spokesperson commented that “Sokha can file an appeal to the higher court for bail”.
Australian Filmmaker Sentenced for ‘Spying’
Cambodia’s courts have been making international headlines again this week following the sentencing of Australian filmmaker James Ricketson to six years in jail on charges of espionage. Ricketson was arrested in Cambodia’s capital Phnom Penh in June 2017 after flying a drone over an opposition rally. In a government produced video prior to the July 2018 election, Ricketson was portrayed as being involved in a vast international conspiracy to overthrow Prime Minister Hun Sen through a “colour revolution” backed by the United States. A similar narrative was seen in the justification of dissolving the CNRP and the jailing of its leader Kem Sokha.
Throughout the seven-day trial the court failed to mention what country Ricketson was spying for, the only evidence cited by the prosecution were two emails and some photographs retrieved from his devices and the state prosecutor did not call any witnesses or name a single victim of his alleged ‘espionage’. Judges ruled that Ricketson had used documentary projects and humanitarian work as a cover for collecting material which would later be used to jeopardise the Cambodian government.
Former Foreign Minister Julie Bishop confirmed in February of this year that she had communicated directly with the Cambodian government about the case. Obviously to no avail. Last week Australia’s current Foreign Minister Marise Payne responded to the sentencing with the statement: “Mr Ricketson is subject to legal proceedings under Cambodian law and must now consider his response to the court’s decision using the avenues open to him under Cambodian law”.
The State of Cambodia’s Legal System
So what can we expect if we rely on existing “avenues” within Cambodia’s legal system?
While the text of the 1993 Cambodian Constitution provides for a robust separation of powers and the protection of judicial independence, an assessment of the judiciary in the local political context reveals major inconsistencies and tensions between these constitutional arrangements and Cambodia’s political culture. Pursuing formal channels of legal appeal are pointless because of the following realities.
Cambodia is fundamentally lacking in the impartial and equal application and enforcement of law. Political and economic elites, and those with powerful connections in patronage networks, can not only evade charges and punishment, but use the law as a resource for economic gain or to disadvantage rival elites. The networks of patronage and corruption that have been built over decades to consolidate the Cambodian People’s Party (CPP) rule could not function if the judiciary was genuinely independent and the law was enforced impartially.
Cambodia’s courts are plagued with corruption and judges are often members of the CPP. Executive interference in the judiciary is extensive and pervasive. This is exercised through direct intervention in some cases, but more commonly through a culture of self-censoring and inertia on the part of judges, police and other legal actors, who will either wait for political instructions, or rule in accordance with what are known to be the government’s wishes or in its interests. Furthermore, there are major deficiencies in due process and bureaucratic capacity that compromise the integrity and operation of the judicial system. Cambodia’s Appellate Court is part of this flawed and corrupt system, so there can be no expectation that it will deliver a verdict not in keeping with the wishes of Hun Sen and the CPP.
The Cambodian Government has been experiencing sustained international pressure following the 2018 general election, after which the National Election Committee confirmed that the CPP won all 125 parliamentary seats contested. The US Government has begun moves to sanction Hun Sen’s regime by freezing assets and restricting visas. The European Union is currently reviewing its preferential trade deal concerning Cambodian exports, which has the potential to severely damage Cambodia’s garment industry.
How Australian Foreign Minister Marise Payne responds to this sentencing, and the Cambodian Government more generally is critical. The spotlight has been on Australia’s relationship with Cambodia since the ABC Four Corners investigation into Hun Sen’s abuses of power. The controversial refugee deal is an unfortunate reality in binding Australia’s interests to Cambodia. The Australian Department of Foreign Affairs and Trade reports that Cambodia received $89 million in official development assistance for the 2017-18 period. Australia is also a major donor to the Extraordinary Chambers in the Courts of Cambodia, better known as the Khmer Rouge Tribunal. Canberra’s continued support for the Hun Sen regime contradicts the view of Australia as a ‘good international citizen’ that seeks to promote norms of democracy and good governance in the region.
The legal avenues available for Ricketson are limited. The CPP government has almost complete control of the judiciary, and they are able to arrest and sentence with impunity. The only realistic avenue for Ricketson is a royal pardon from the Cambodian King, which would have to be requested by Hun Sen himself. This will require political pressure on the part of the Australian government—not a recourse to Cambodian law as suggested in Payne’s statement.