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

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.