The Asian Human Rights Commission (AHRC) notes that, as a result of encouragement from the international community, the Cambodian government signed the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) on September 27, 2004. This signature is welcomed as a first step, but is meaningless without ratification. The provisions comprised within the First Optional Protocol only become legally binding upon States following ratification.
When States sign a United Nations Covenant or Convention, they indicate their intention to ratify the treaty at an unspecified later date. However, signature creates no obligation other than the obligation not to take action which is contrary to the treaty. Under the provisions of the First Optional Protocol to the ICCPR, citizens from a State Party are able to lodge individual complaints to the United Nations Human Rights Committee in relation to human rights abuses that they have suffered and for which they have exhausted domestic legal remedies without gaining redress. The signature of the Optional Protocol is of no value in itself. It is only upon ratification that the complaints mechanism is enabled. It is therefore vital that the Cambodian authorities advance beyond the declaration of intent made in September 2004, and immediately ratify the Optional Protocol in question.
As part of the Paris Peace Agreements of 1991 to end the war in its territory, Cambodia committed itself to protect human rights and fundamental freedoms. As is well known, the country was emerging from a catastrophic period characterised by mass killings, destruction and war. It has since acceded to many relevant international human rights instruments, including the ICCPR in 1992. Although the human rights situation has improved in comparison with the situation under the preceding communist regime, the improvement is not commensurate with the continued massive assistance and support provided by the international community to promote and protect human rights since 1992. Repression and violations of fundamental rights and freedoms have continued at unacceptable levels. The Cambodian people still suffer from a psychosis of intense fear.
The greatest obstacle to progress concerning human rights in Cambodia is the lack of the rule of law. The institutions that uphold the rule of law–especially the prosecution, the courts and the police–are very much under political control and, together with their procedures, are not designed or allowed to function in order to promote and protect human rights and freedoms as stipulated under the Cambodian constitution and the international human rights instruments to which Cambodia is party. Access to these institutions for protection or for redress is complicated, difficult and costly. The institutions are used to consolidate the powers of the ruling party and to benefit its rich supporters, at the expense of the powerless and the poor, who are most in need of such protection. There is no equality before the law. The likelihood of the disfavoured achieving justice in any litigation against the powerful or rich is very low. The courts have a constitutional role to play in the protection of human rights and freedoms, but their performance has thus far been extremely poor.
There are three other State institutions that have a role in protecting human rights. The National Assembly (lower chamber) and the Senate (upper chamber) each have a Human Rights and Complaints Reception Committee, and the government has its own Human Rights Commission. All are based in the capital, Phnom Penh, but are not easily accessible to the ordinary citizen of Cambodia because of prohibitive distances and bureaucratic hurdles. These bodies are able to conduct investigations, but have failed in providing protection and redress to victims or in bringing perpetrators to justice.
The Constitutional Council is the supreme body through which citizens should be able to challenge the constitutionality of laws, regulations and decisions of State institutions that are affecting their constitutional rights. The procedures involved in making such challenges, however, prevent citizens from having direct access to the Council. A citizen that wishes to make a complaint before the Constitutional Council has to either get the King, the Prime Minister, the President of the Senate, the President of the National Assembly, one tenth of Cambodia’s MPs or one quarter of its Senators to request that the Council adjudicate the case. Citizens may also attempt to access the Constitutional Council through a court of law, but only when they are a party in a court case in which they feel that their rights are being negatively affected by the application of particular laws. This channel, however, cannot guarantee citizens’ access, as the Supreme Court must first accept their case and submit it to the Council.
Cambodia’s leaders cannot be expected to support any petition that goes against their policies or decisions, or the interests of their party or supporters. Furthermore, the chance of getting a fair hearing is limited, as the ruling party has a majority in the Council. The likelihood of a citizen getting the Council to affirm his constitutional rights is at best very low, if these rights in some way go against the interests of the ruling party or those of its powerful members or supporters. Testimony to this is the Council’s decision in October 2004 that affirmed the constitutionality of the Law on Demonstrations of 1991, sanctioning the legality of the government’s ban on demonstrations. This decision exemplifies the Council’s partisan bias, as it is widely accepted that this law contravenes the right to peaceful assembly, as protected under the Cambodian constitution and the ICCPR. The fact that a new law is now being drafted to replace this law, confirms its flaws and unconstitutionality, along with the Council’s lack of independence.
The institutions for the rule of law have not only failed to protect human rights and freedoms, but have furthermore become instruments of repression used by the government to silence critics and by the powerful to infringe upon the rights and freedoms of Cambodian citizens with impunity. The arrests of opposition MPs and human rights activists in 2005 and the mounting problem of land grabbing over recent years speak to this point. The impunity enjoyed by perpetrators and the accumulating injustices doled out to victims of abuses since the signing of the Paris Peace Accords, when protesters against such abuses were arrested or killed, are also indicative of the increasing repression and the failure of rule of law institutions in the country.
In such an institutional setting, the only hope for the Cambodian people to have their rights affirmed and to secure redress for violations suffered is for them to have recourse to the United Nations Human Rights Committee, notably through the submission of individual complaints. The failure of domestic remedies gives rise to an imperative requirement for such an avenue to be made available to those seeking redress. Alongside the benefits that may be granted to individual victims making complaints under such a system, the Committee can also identify flaws and shortcomings in the protection of human rights and compel the Cambodian government to take corrective measures to reform the institutions of the rule of law.
The Asian Human Rights Commission urges the Cambodian authorities to ratify the First Optional Protocol to the ICCPR without any further delay. Under the constitution of Cambodia, the government’s signature of international treaties must be handed to the Parliament for approval. Following this, the King can carry out the ratification. The AHRC therefore urges the government to ensure that this process is initiated immediately. The issue of ratification should be seen as a test of whether the Cambodian government is sincere in upholding longstanding commitments made under the Paris Peace Accords and carrying out its current legal and judicial reform programme concerning the respect and observance of human rights and freedoms.
The Asian Human Rights Commission also urges the international community to engage with the Cambodian government in order to promote the ratification of the First Optional Protocol. The Secretary-General of the United Nations, through the UN Special Envoy for Human Rights in Cambodia; the UN High Commissioner for Human Rights; as well as all donor countries and State signatories to the Paris Peace Accords on Cambodia, should work with the Cambodian authorities to encourage the immediate ratification the First Optional Protocol to the International Covenant on Civil and Political Rights.
