自2005年起，骚扰和威胁人权卫士现象在柬埔寨不断增加，包括利用法律威胁、恐吓、控告和监禁人权工作者、记者和律师。司法和诉讼缺乏独立性也是一个持续已久的问题。经常可以看到行政官员的干涉、腐败和无能，造成某些人或机构为了获得政治利益而指控某些人或让某些人免罪。
柬埔寨已经签署了大多数主要的联合国人权文件，即《世界人权宣言》、《经济、社会和文化权利国际公约》。柬埔寨宪法也吸收了国际人权条款。譬如，《宪法》第31条称政府"应该承认和尊重《联合国宪章》、《世界人权宣言》、与人权、女性和人儿童权利相关的公约和大会中规定的人权"。但是，柬埔寨法庭既不独立，效率也低。1995年的律师界法令规定法律职业的独立性，并授权柬埔寨王国律师协会（BAKC）管理。但是，在过去的几年中，此律师协会在促进独立法律实践中受到了党派内部分歧和政府压力的阻碍。
- 莫淑華（Mu Sochua）和江山安（Kong Sam Onn）之案
江山安先生是一名律师，曾在两个诽谤案中为反对党森朗西党（Sam Rainsy party）立法者和前妇女事务部部长莫淑华辩护。一个案子是莫淑华起诉总理洪森（Hun Sen），一个是洪森的反起诉。两个案子都起因于4月4日总理的一份演讲。莫淑华声称洪森在演讲中诽谤了她。
接着，柬埔寨律师协会的纪律委员会发现江山安违反了律师协会条例的第4、6和15条。违法行为都围绕着4月23日（莫淑华提出起诉的3天前）江山安在新闻发布会上发表的言论，他在发布会上称洪森诽谤了他的当事人。据律师协会的秘书长和发言人苏安（Suon Visal）说，委员会19名成员是基于检查小组的报告来裁决江山安一案的。江山安有15天的时间提出上诉，或者请求律师来做此事。委员会将裁决对他的处罚，结果可能是暂时吊销工作许可或是永久取消律师资格。但是江山安也有可能只获得警告处罚。7月7日他被传唤至纪律委员会，但是他要求同时传唤凯泰（Ky Tech）向委员会解释他的案子的细节。
苏安否认律师协会受到任何政治压力，并说委员会可以传唤凯泰，但是他们已经听到足够证据，能够对江山安的案子做出裁决。根据程序，原告通常只出现在法庭上澄清证据，但是在这个案子里并没有执行该证据程序。
总理洪森警告说，如果国民大会投票剥夺莫淑华的国会议员豁免权的话，她的政治生涯就结束了。根据程序，如果获得国会投票通过比例超过2/3可以剥夺国会议员豁免权，同样的得票比例也可以再次恢复此权利。但是，恢复她的豁免权可能很困难，因此柬埔寨人民党（CPP）已经拥有足够多的席位，这些人中已经有一些人已经说他们不会投票恢复对她的立法保护。工会领袖在6月份威胁说如果莫淑华的豁免权被取消的话，他们会组织大规模抗议，但是洪森对此嗤之以鼻，说亲政府团体将组织大规模集会进行对抗。洪森还警告说话大胆的非政府组织们小心一点，因为他可能会向法庭指控"他们总是胡说八道"。
不幸的是，看起来洪森将再次得逞，因为莫淑华的豁免权在6月24日被终止。森朗西党立法委员和发言人伊姆·苏万（Yim Sovann）称这是滥用宪法："如果总理有绝对权力，可以根据他的心情做任何事情，那么就没有民主。"
莫淑华豁免权被取消一事似乎显示了一股实际上更为广泛的趋势。洪森及其政府内当权者以前也威胁，并采取法律行动镇压反抗，在近几个月内就已经发生了8次。总理本人曾以诽谤、发布不实信息和煽动等罪名起诉反对党议会成员、记者和人权卫士。洪森也警告外国人不要干涉，说国民大会的投票是设计来加强民主和法制的。但是民主却被削弱，法制也完全被忽视。
莫淑华一案凸显出柬埔寨律师协会缺乏独立性，并受到政治压力，而总理和统治党柬埔寨人民党还是有权力随心所欲。任何阻碍他们的人都面临丢失工作甚至更糟糕的危险，被逮捕或杀害，如曾报道腐败和土地争夺问题的记者金桑博（Khem Sambo）* 。许多政府高官利用政府权力提出诉讼，进行报复。在之前的诉讼案中，被告都被判罚，或是被迫道歉也避免判罚。只有当国内和国外都有强大压力的时候，这些人才能获得释放，避免悲惨的命运。有些被告甚至逃到国外。这样的结果助长了那些政治权威，使得言论自由受到更强的压制，也显示法庭被利用来让批评政府的人闭嘴。虽然柬埔寨宪法声称保护人权和平等，但是柬埔寨人要想真正对政治权力有所控制，真正能够不受拘束地行使他们的权利，还有很长的路要走。请参考附录中由亚洲人权委员会在上周发布的一篇卓越的声明，声明讨论了缺乏权力分离的严重问题，以及柬埔寨迫切需要建立一个独立的司法机构，以保护法制和人权。因为国内的组织和当地人不敢大声反对洪森和他的政党（这当然也是无可厚非的），国际社区必须更加主动，要求在柬埔寨维护司法和法治。
* 其他的例子包括：（1）在过去的4年间，反对党森朗西党领袖森朗西在逃往外国避难后在当事人不在场的情况下被审判。他获得赦免，只在2008年后期被一名资深部长以诽谤罪名起诉。柬埔寨法庭因为受到民众压力，驳回了这一起诉。但是因为森拥有柬埔寨-法国双重国籍，该部长还在法国起诉了他。（2）一群为副总理工作的官员因某报纸编辑，因为此报纸刊载了隐射他们腐败的报导。（3）22名军官以诽谤罪名起诉反对党森朗西党的另外一位议员Ho
Vann。Ho Vann对他们在越南某军事学院获得的学位发表批评性评论，虽然后来发表此评论的报纸也刊登了他的更正，但是Ho
Vann的议会免责权也在6月24日被终止。（4）一家名叫高棉文明的非政府组织领导人Moeung Son因为电视主持人Soy
Sopheap发表了批评他的言论而起诉了他。这位主持人与洪森关系较近。此后他被政府起诉，因为他批评了在这个国家著名的吴哥窟庙中安装的灯光。因为害怕即将被捕，他逃到国外。（5）万谷湖地区居民面临被驱逐出此区域，生活在这里的一名学生因为在他家的墙上写了批评应对此负责的政府和公司的口号而被指控和判罚。
Grace Minjeong Sur is currently interning with Legal Aid of Cambodia. She will be a second-year law student at the
University of Pennsylvania Law School.
The following is a report discussing some of the political and legal
barriers to the practice of public interest and human rights law in Cambodia.
Since 2005, there has been an
increase in harassment and threats against human rights defenders in Cambodia,
including the use of laws to threaten, intimidate, charge or imprison human
rights workers, journalists and lawyers. Further, lack of judicial and
prosecutorial independence has been a longstanding concern. Problems
consistently noted are executive interference, corruption and lack of
competence, resulting in politically motivated prosecution of some and impunity
for others.
Cambodia has ratified most
major UN human rights instruments (e.g., the Universal
Declaration of Human Rights, the International Covenant on Economic, Social and
Cultural Rights).
The Cambodian
Constitution also incorporates international human rights
provisions. For example, Article
31 of the Constitution states that the government "shall recognize and respect
human rights as stipulated in the United Nations Charter, the Universal
Declaration of Human Rights, the covenants and conventions related to human
rights, women's and children's rights." However, Cambodian courts are neither independent
nor effective. The 1995 Law on the Bar provides for the autonomy of the
legal profession, and sets forth the mandate of the Bar Association of the
Kingdom of Cambodia's (BAKC). However, for the past number of years,
progress of the BAKC in fostering an independent bar has been impeded by
internal divisions along partisan lines as well as by government pressures.
- Mu Sochua and Kong Sam Onn Case
Mr.
Kong
Sam Onn, a lawyer, has represented the opposition Sam Rainsy Party lawmaker and
former Minister of Women's Affairs, Mu Sochua, in two defamation lawsuits - one
filed by Mu Sochua against Prime Minister Hun Sen, and a countersuit filed by Hun
Sen - stemming from an April 4 speech by the premier. Mu Sochua claims Hun Sen made derogatory
comments about her during this speech. The Cambodian
Bar Association's disciplinary council then found Kong Sam Onn in
violation of Articles 4, 6 and 15 of the Bar Association rules. The violations surrounded Mr. Kong Sam Onn's assertions during a press conference held on
April 23, three days before Mu Sochua's suit was filed, that Hun Sen had defamed
her. According to the secretary
general and spokesman for the Bar Association, Suon Visal, the 19 council
members ruled on Kong Sam Onn's case based on reports from an inspection
team. Kong Sam Onn has 15 days to plead
his case himself or request a lawyer to do so.
The council will decide on his punishment, which could be either temporary
suspension from his job or expulsion from the bar. Kong Sam Onn, however, may be able to get off
with just a warning. He has been
summoned to face the disciplinary council on July 7, but he has asked that Ky
Tech also be required to appear to explain the details of his case before the
council. Suon Visal dismissed the
suggestion that the BAKC was under political pressure and said that the council
was allowed to summon Ky Tech, but that it had already heard enough evidence to
reach a decision in the Kong Sam Onn case.
According to procedure, the plaintiff normally only appears in court to
clarify issues of evidence, but in this case such evidentiary issues are not
present.
Prime
Minister Hun Sen had also warned that if the National Assembly voted to strip
Mu Sochua of her parliamentary immunity, her political career would be
over. Procedurally, parliamentary
immunity can be lifted by two-thirds vote of the Assembly and similarly restored
by a two-thirds vote. However, restoring her immunity may be impossible because
the CPP holds more than enough seats, some of whose members have already said
they would not vote to restore her legislative protection. Union leaders have made threats in June to
organize mass protests if Mu Sochua's immunity is lifted, but Hun Sen only
mocked them, saying pro-government groups would organize mass rallies in
response. Hun Sen also warned outspoken
NGOs to watch their step, saying that he would file a complaint with the courts
if "they spoke too much nonsense."
Unfortunately,
it seems that Hun Sen will have his way again because Mu Sochua's immunity was
lifted on June 24. SRP lawmaker and
spokesman Yim Sovann claimed that this is an abuse of the Constitution:
"[i]f a Prime Minister has absolute power and does everything according to
his emotions, there will be no democracy."
The lifting of Mu Sochua's
immunity appears to be part of a broader trend.
Hun Sen and other powerful people in his government have previously
utilized threats accompanied by legal action to quell opposition, specifically
eight times in recent months. The prime
minister himself has sued opposition Members of Parliament (MPs), journalists,
and human rights defenders, alleging defamation, disinformation and incitement.
Hun Sen has also warned
foreigners not to interfere and said that the Assembly's vote was designed to
strengthen democracy and the rule of law.
However, democracy is instead being undermined and the rule of law is
being completely ignored.
The Mu Sochua case highlights how
the Cambodian Bar Association is still not independent and is subjected to
political pressures, while the prime minister and the ruling CPP party seem to
have the power to do what they like.
Anyone who stands in their way is in danger of losing their jobs or
worse, being jailed or killed, like the journalist Mr. Khem Sambo, who reported
on corruption and land grabbing issues.[1] Many lawsuits have been filed by powerful figures in the government against
their critics, using the authority of the government to retaliate. In the past lawsuits, the defendants have all
been convicted or compelled to apologize to avoid conviction. Only if there was strong pressure from inside
and outside the country for their release were they able to avoid this fate. Some defendants have even fled the country. Such outcomes that favor the politically powerful
have further eroded freedom of expression and shown that the courts are being
used to muzzle government critics. Although
the Cambodian Constitution purports to protect human rights and equality, there
is still a long way to go before Cambodians truly have a check on political
power and the unfettered freedom to exercise their rights. Please refer to the annex for an excellent
statement released by Asian Human Rights Commission last week that discusses
the serious problem of a lack of separation of powers and the urgent need for
an independent judiciary in Cambodia to protect the rule of law and human
rights. Since domestic organizations and
the local people are afraid to speak up against Hun Sen and his party (and
justifiably so), the international community must become more proactive and demand
that justice and the rule of law be upheld in Cambodia.
[1] Other examples include: (1) Over the last four years, Sam Rainsy, the leader of the opposition Sam Rainsy Party, was sentenced in absentia after fleeing abroad. He was granted amnesty only to be sued later in 2008 by a senior minister for defamation. Thanks to pressure, the latest lawsuit against him in the Cambodian court was dropped, but that minister has still sued him in a French court as Sam has a dual Cambodian - French citizenship. (2) A number of officials working for a Deputy Prime Minister have sued the editor of a newspaper for its stories implicating them in corruption. (3) Twenty-two army officers sued Ho Vann, another MP from the opposition SRP, for defamation, after he had made remarks critical of the degrees they had obtained from a Vietnamese military institute, although the newspaper that had reported his remarks later published his correction. Ho Vann's parliamentary immunity was stripped on June 24 as well. (4) Moeung Son, the leader of an NGO called the Khmer Civilisation Foundation sued a TV presenter, Soy Sopheap, who is very close to Hun Sen, for his remarks critical of him, only to be sued in turn by the government for his remarks critical of the installation of lighting in the country's famous Angkor Wat temple. Fearing imminent arrest, he has fled the country. (5) A student living in Boeung Kak Lake area where residents are facing eviction has been charged and sentenced for writing slogans critical of the government and the company which are responsible for that eviction on the outside wall of his house.
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