A Change of Guard

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Tuesday, 7 June 2016

The government and the rule of law


Opposition lawmaker Um Sam An is escorted out of the Appeals Court in Phnom Penh last month after he was charged for inciting revolt by criticising border maps. AFP
Opposition lawmaker Um Sam An is escorted out of the Appeals Court in Phnom Penh last month after he was charged for inciting revolt by criticising border maps. AFP

The government and the rule of law
Tue, 7 June 2016 ppp
Billy Chia-Lung Tai


On Friday, the Ministry of Foreign Affairs and International Cooperation issued a press release where the ministry expressed its “surprise” by some diplomatic missions’ “interference in the internal affairs of a sovereign state”.

The ministry evidently took offence at the previously released statements issued by the US Embassy, the EU Delegation Embassy and the United Nations secretary-general’s office, all expressing various levels of “concerns” at the latest escalation of what appears to be a politically motivated judicial pursuit of Kem Sokha, the acting leader of the Cambodian National Rescue Party (CNRP). The statement stated that the Cambodian government “has only carried out the same rule of legal and judicial procedure also in effect” in the US and EU countries.

The Cambodian government, through the Ministry of Foreign Affairs, is asserting its legal legitimacy in the pursuit of Sokha, and dismissing any dissenting voice to the contrary. I would instead suggest in this article that this statement shows a distinct lack of fundamental rule of law understanding on the part of the Cambodian government.

It is true that under Cambodian law and most other international jurisdictions, ignoring a properly issued court summons would either be a criminal act or at the very least be in contempt of the court. However, as I pointed out in my previous article, Kem Sokha has still not been made aware of the exact crime(s) that he has been called to give evidence for, or might be charged with himself.


This highlights a fundamental misunderstanding by the Cambodian government of the separation that would exist between different judicial and political interests in a country with a robust rule of law framework. The government is taking the black-letter laws passed by its own parliament, and using them arbitrarily against anyone that is perceived to be acting against the government’s political interests.

In this case, the government seems to have completely forgotten the fact that the proper implementation of any enacted law can only be done while respecting the established international fair trial standards and rule of law principles.

The World Justice Project defines four universal principles that uphold the concept of rule of law. These include government accountability, clarity and transparency in enacting and disseminating the laws, the equal application of the law, and access to justice being provided by competent, independent and ethical adjudicators. In their 2015 World Rule of Law Index, Cambodia was ranked 99 out of 102 countries surveyed, indicating an extremely poor adherence to these rule of law principles.

The Cambodian government has a long history of applying the law to different groups of people very differently. This has been mostly evident in crimes such as defamation and the various incitement related crimes under the Criminal Code.

The application of these laws remains almost exclusively against opposition politicians or civil society actors who are perceived by the government to be in support of the opposition. In this case, various government-aligned actors have implicated Sokha to have committed “adultery”, a criminal act under the Law on Monogamy, a law that was enacted in 2006 amid strong political controversies.

Most legal scholars and practitioners in Cambodia have argued that the provisions in that law have been replaced by similar provisions in the new Criminal Code, which came to effect in 2010, rendering the Law on Monogamy “effectively repealed”. Similar debate occurred with the crime of “misinformation” under the old UNTAC Penal Code, one that has been invoked against CNRP’s leader Mr Sam Rainsy on several occasions even after the enactment of the new Criminal Code.

The government behaviour highlights a major problem in the Cambodian rule of law framework. The Criminal Code that came into force in 2010 was designed to combine a sleuth of criminal-related provisions spread across different laws into a single comprehensive code.

However, the laws that the new Criminal Code was designed to replace were never repealed officially, making these laws (including the old penal code originally enacted under the UNTAC authority, which the Criminal Code was to replace) lie in dormant until the government decides to selectively invoke them for a particular purpose.

Even if we accept that the Law on Monogamy is still in force today, the single application of the law against an opposition leader would strongly indicate that this law is being used purely to advance a political agenda.

It would be an extraordinary and unbelievable assertion to for one to suggest that Mr Kem Sokha is the only politician in Cambodia that has been unfaithful to his or her spouse since the enactment of the monogamy law in 2006.

For the government to have the full legal legitimacy in their assertion that Cambodia is a country with a fully functioning rule of law structure, it is important the government actually implement all laws in compliance with these fundamental rule of law principles.

A major first step would be to clearly identify the laws that are still in effect and the laws that have been effectively repealed by the implementation of both the Criminal Code and Civil Code. At the present moment, a more accurate assertion would be that Cambodian people are simply being “ruled by the law” created and arbitrarily enforced by the government.

Billy Chia-Lung Tai is an independent human rights and legal consultant.

1 comment:

Anonymous said...


Dear compatriots,

It is crystal clear that the evil Vietnam Yuon had found a true faithful servant named Hun Sen to facilitate its Vietnamization over Cambodia.

This one eye monster Hun Sen has proven time after time that he will never change his temperament, his conviction to stay in power to serve his master Yuon until the day he goes to hell.

In effect, the recent arrests and imprisonments of Khmer nationalists, who dared to denounce the evil Vietnam's encroachment of borders, underscored the notion that this devil Hun Sen was born to make Cambodia a satellite of Vietnam.

The CPP knew that it is going to lose big in this next election. Such fear of losing prompted Hun Sen and the CPP to launch some preemptive strikes to destroy the CNRP.

The vast majority of Khmer people have vehemently condemned the CPP and Hun Sen's actions.

But there are a few people such as Mam Sonando, Khem Veasna, etc ...who chastised the CNRP, citing the CPP's erratic behaviors are the result of the CNRP's joining the National Assembly. What a dumb judgment from these two stupid crazy fake heroes.

Mam Sonando and Khem Veasna should know how to set the priority right: you can implement your plans only after you have won the election.

Presently, these two self proclaimed Khmer heroes (Mam Sonando, Khem Veasna) have inadvertently served the CPP and Yuon by weakening the CNRP and strengthening the CPP.

I am still wondering what did Hun Sen do to make the evil Yuon believe that he will be a trustworthy dog for Vietnam ?

How many thousands of innocent Khmer people did Hun Sen kill in order to persuade Vietnam that he will be the right person to replace Pen Sovann and the right person to carry the execution of Ho Chi Minh's plan to swallow Cambodia ?

To free Cambodia from this evil Vietnam, Khmer people must have perseverance, great determination and avoid going into Vietnam and Hun Sen's traps by NOT using violence. The CPP's secret agents or third hands might infiltrate into the crowd and create violence so that the monster Hun Sen could have a pretext to "restore the order" and crush Khmer people legally.

We must realize that death, prison, pain are naturally part of any struggle to liberate a country. Nothing is free in this world. We must help ourselves first before other help us.

Bun Thoeun