CCHR Press Release - CCHR welcomes the Court of Appeal’s decision to release Mam Sonando but observes that the verdict was a classic example of “rule by law” rather than “rule of law”

CCHR PRESS RELEASE – 20 March 2013, Phnom Penh

CCHR welcomes the Court of Appeal’s decision to release Mam Sonando but observes that the verdict was a classic example of “rule by law” rather than “rule of law”

The Cambodian Center for Human Rights (“CCHR”) welcomes the Court of Appeal’s decision on 14 March 2013 to release Mam Sonando, but observes that the verdict, in keeping with the entire case, was a classic example of “rule by law” rather than “rule of law”.  At the suggestion of the Prosecution, the Court of Appeal dropped the more serious charges against Mam Sonando, namely those prohibiting insurrection (Articles 456 and 457 of the Penal Code 2009) and incitement to take up arms against the state authority (Article 464), but retained the others – Article 504, which prohibits the obstruction of public officials with aggravating circumstances, and Article 609, which prohibits unlawful interference in the discharge of public functions, both of which are brought by virtue of Article 28, which establishes criminal liability for the instigation of a felony or misdemeanor under Cambodian law.  He was then sentenced for an additional charge – Article 97(6) of the Forestry Law 2002, which prohibits the clearing or occupation of forestry land and carries a sentence of five to ten years in prison.  Mam Sonando’s sentence was reduced from 20 years’ to five years’ imprisonment, with his prison term adjusted to time already served, namely eight months, with the remainder suspended.  He remains under judicial supervision for the next three years.

In its 7 March 2013 Press Release, CCHR noted several legal and judicial developments that have grave implications for due process in the Cambodian courts and which deserve to be highlighted, namely that: (1) as CCHR stated in its recently released Legal Analysis, no credible evidence was provided in court to connect Mam Sonando with any of the events in Pro Ma village in the first half of 2012, and so he should be acquitted of all charges against him; (2) while technically in accordance with the Criminal Procedure Code 2007, introducing a new charge so late in the judicial process is contrary to Mam Sonando’s fair trial rights protected under the International Covenant on Civil and Political Rights (the “ICCPR”) which Cambodia has ratified (and therefore incorporated into domestic law); and (3) vital witnesses who testified against Mam Sonando at the original hearing and received suspended sentences did not appear in court – and were therefore unable to be cross-examined by Defense lawyers while under oath – with the court curiously unwilling to compel them to do so.

In addition, the new Forestry Law 2002 charge seems to have been misinterpreted and misapplied by the court, in particular with reference to the land concession granted to the development company Casotim in 1996, which is at the center of the case.  The original concession was a forestry concession.  However, according to two letters – dated 12 March 2007 and 25 March 2008 from the Ministry of Agriculture, Forestry and Fisheries – 124,284 hectares of the forestry concession were to be maintained as forest land, while 15,165 hectares were earmarked to be cleared to make way for rubber and acacia plantations.  Nevertheless, Mam Sonando was convicted of instigating the clearing of land within these 15,165 hectares, i.e., land already cleared well before Mam Sonando allegedly instigated the Pro Ma village residents to clear the forest in February 2012.  Furthermore, the very fact that the land earmarked for plantation was carved out of the original forest concession indicates that the forest had already been cleared back in 2007 or 2008, because forestry concessions cannot legally be cleared and converted into plantations under Article 33 of the Forestry Law 2002.  Therefore, the Pro Ma residents would have had to have cleared forest land – rather than land already cleared and approved for development – for the charge to validly apply.  Furthermore, under the Land Law 2001 (Articles 16 and 17), in order for a valid economic land concession to be legally granted – as required for rubber and acacia plantations – the land must first be converted from “state public land” to “state private land”, and there is no evidence in this case that it was.

Despite these serious concerns with due process and the rule of law as implemented by the courts, it is important to recognize that one of Cambodia’s foremost independent voices is free once more.  His right to freedom of expression is protected not only under the ICCPR but also under Article 41 of the Constitution of the Kingdom of Cambodia.  Although Mam Sonando was kept in arbitrary detention for eight months and the courts refused to acquit him of the remaining charges, his right to freedom of expression has ultimately been safeguarded, albeit rather late in the day.

CCHR President Ou Virak comments:

“Now that the dust has settled on the events of last week and we’ve had an opportunity to reflect on the Court of Appeal’s verdict, it is time to consider how we can take things forward.  The decision to release him was undoubtedly a huge relief for Mam Sonando – a moment of real happiness for him, his family and his supporters – and a boost for freedom of expression in Cambodia.  It was also a political compromise, and much remains to be done before the rule of law is respected in Cambodia.  However, we at CCHR would like to reconfirm our willingness to roll our sleeves up and work with the Cambodian judiciary to help it try to establish the rule of law.  The goal should ideally be a court system that has the complete trust of the Cambodian public.  It is not out of the question.”

For more information, please contact Ou Virak via telephone at  +855 (0) 1240 4051  or e-mail at ouvirak@cchrcambodia.org or Senior Consultant Robert Finch via telephone at  +855 (0) 7880 9960  or e-mail at robert.finch@cchrcambodia.org. 

Please also find this Press Release attached in PDF format, in both Khmer and English.

Kind regards,

CCHR