Home / News / Urgent Appeals / CAMBODIA: Government interference threatens the independence of the Bar Association by overturning the result of presidency election
 

CAMBODIA: Government interference threatens the independence of the Bar Association by overturning the result of presidency election

December 17, 2004

URGENT ACTION URGENT ACTION URGENT ACTION URGENT ACTION

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

17 December 2004
---------------------------------------------------------------------
UA-177-2004: CAMBODIA: Government interference threatens the independence of the Bar Association by overturning the result of presidency election

CAMBODIA: Increased politicisation of the Bar Association; Threat to the independence of the Bar Association; government interference
---------------------------------------------------------------------

Dear friends,

The Asian Human Rights Commission (AHRC) is deeply concerned by recent events regarding the Bar Association of Cambodia.  Of most significance was the overturning of election results for the Bar Association by the Appeals Court.  The 16 October 2004 bi-annual election for the Bar Association presidency resulted in a surprise victory for Mr Suon Visal, who campaigned on increasing the independence of the bar, to better promote human rights and to gain additional international support for Bar Association programs.  However, the election results were quickly contested by Mr Ky Tech, the losing incumbent, who has strong ties to the government.  Subsequently, the Appeals Court overturned the election result in a highly suspect ruling issued from a closed court (the full text of the judgement will not be released).  This matter has been appealed by the Bar Council, which supports the new president, to the Supreme Court.  Also of concern is the admittance of Prime Minister Hun Sen and three of his senior advisers to the Bar, despite none of them having any legal credentials.  There is also the issue of the government recently donating a building to the Bar Association. 

It is evident that the independence of the Bar Association is under threat.  The Appeal Court's judgement appears highly unfair and overwhelmingly politicised, there is no apparent reason why persons would be promoted to the Bar when they are not lawyers, and it is perhaps a signal of interference when the government is donating property to the Bar.  With this in mind, we urge you to intervene into this matter, to express your disappointment and disapproval of the government's handling of this situation and to question the independence of the Bar Association of Cambodia. 

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
--------------------------------------------------------------------

DETAILED INFORMATION:

The Bar Association of Cambodia is meant to be an independent body.  However, in recent months, it has become increasingly politicised. Of most significance was the overturning of election results for the Bar Association by the Appeals Court.  The 16 October 2004 bi-annual election for the Bar Association presidency resulted in a surprise victory for Mr Suon Visal.  However, the election results were quickly contested by Mr Ky Tech, the losing incumbent, who has strong ties to the government.  Subsequently, the Appeals Court overturned the election result in a highly suspect ruling issued from a closed court (the full text of the judgement will not be released).  The Appeals Court judgement is highly suspect due to the secretiveness of its findings, and because there appears no apparent reason to nullify the original and legitimate result, or to have the losing incumbent, Ky Tech, reinstated.

Further interference into the independence of the Bar Association has also been witnessed. Prime Minister Hun Sen and three of his senior advisors were mysteriously admitted as lawyers to the Bar, despite having no legal credentials.  Furthermore, The Council of Ministers recently donated a new building for the Bar, further binding it to the government.

These events represent a grave threat to the independence of the Bar and, if they stand, pose a significant obstacle to Cambodian legal reform.  There is ample evidence that the nullification of the election by the Appeals Court is politically motivated.  It is also legally unsound.

The Bar Council of the Kingdom of Cambodia has been highly critical and vocal in its condemnation of the Appeal Court's judgement.  It has stated that it "recognises only Mr Suon Visal as President of the Bar Association…[and that the]…Bar Association of the Kingdom of Cambodia shall not be responsible for any decision or activity by Mr Ky Tech on behalf of the Bar Association".  The Bar Council has also criticised the Appeals Court for having failed to forward to the Council any formal notification regarding its judgement.

Soon after the judgement was announced, lawyers representing a large majority of the Bar Council (14 out of 19), lodged an appeal with the Supreme Court.  Any attempt by Mr Ky Tech to act as President while the appeal is pending is a violation of Article 13 of the Law on the Organisation and Activities of the Court, Article 217 of the Law on Criminal Procedure, and the Decision of the Supreme Court No. 09 dated March 10, 2004, all of which states that any judgement rendered by the Appeal Court shall not be enforced while it is under appeal to the Supreme Court.

Furthermore, the judgement made by the Appeal Court is partial and a violation of law based on several grounds.  Firstly, Mr Visal's lawyers received notification of the Appeal Court trial only three days before the trial, rather than the 15 that is required.  Secondly, the Appeal Court illegally banned the public from the trial.  Thirdly, the Appeal Court violated Mr Visal's right of appeal by ordering immediate enforcement of its decision even though, as previously explained, while a appeal to the Supreme Court is pending, the decision must not be enforced. Fourthly, the Appeal Court interfered with the independence of the Bar Association by ordering the defeated President to continue holding office for three months during which time he is to prepare a new election.

The above demonstrates the apparent interference by the Appeals Court and certain members of government with the independence of the Bar Association.  It would appear that powerful government backers of Mr Tech believe that the Bar Association presidency is not a matter of international concern and therefore a power play to keep Mr Tech in control will go unnoticed. 

SUGGESTED ACTION
Please send a letter, fax or email to the Cambodian authorities stating your disappointment and disapproval of the governments interference in this matter.  Please also send a copy of that letter to the other relevant bodies listed below.

Sample letter:

----------------

Dear ____________,

Re: CAMBODIA: Government interference threatens the independence of the Bar Association by overturning the result of presidency election; Threat to the the independence of the Bar Association

I write to express my strong disappointment and disapproval of the government of Cambodia's interference into the 16 October 2004 outcome of the Bar Association presidential election.  The original result that saw Mr Suon Visal elected to power should stand and the government should refrain from influencing the reinstating of Mr Ky Tech as president.  Mr Tech was duly defeated in the election.  This outcome should be respected.

I am particularly concerned by the judgement made by the Appeal Court regarding the reinstating of Mr Tech.  The Appeal Court's judgement was partial and is a violation of law based on several grounds. Firstly, Mr Visal's lawyers received notification of the Appeal Court trial only three days before the trial, rather than the 15 that is required.  Secondly, the Appeal Court illegally banned the public from the trial.  Thirdly, the Appeal Court violated Mr Visal's right of appeal by ordering immediate enforcement of its decision even though, as previously explained, while a appeal to the Supreme Court is pending, the decision must not be enforced. Fourthly, the Appeal Court interfered with the independence of the Bar Association by ordering the defeated President to continue holding office for three months during which time he is to prepare a new election.

I am also concerned by information I have received regarding the recent politicisation of the Bar Association.  I question as to why the Cambodian Prime Minister and three of his senior advisers have been admitted to the Bar, despite having no legal credentials.  I also question as to why the Council of Ministers recently donated a new building to the Bar.  These are questions that I believe deserve to be answered.

The Bar Association is meant to be an independent body.  Therefore, I urge you to ensure that the government of Cambodia refrains from influencing any decision made regarding the future of the Bar Association.

Yours sincerely,


--------------------------------------

SEND A LETTER TO:

1.  Prime Minister Samdech Hun Sen
Royal Government of Cambodia
Phnom Penh
CAMBODIA

2.  H. E. Sok An
Chairman
Council of Legal and Judicial Reform
No. 41, Russian Federation Blvd
Phnom Penh
CAMBODIA

3.  Mrs Margo Picken
United Nations Human Rights Center
No. 10, Street 302
PO Box 108
Phnom Penh
CAMBODIA
Fax: +855 23 212 579
Email: margo@ohchr.org.kh

4. Mr. Leandro Despouy
Special Representative on the Independence of judges and lawyers
OHCHR-UNOG, Palais Wilson,
Rue des Paquis 52, Geneva
SWITZERLAND
Tel: +41 22 9175727
Fax: +41 22 9179006

5. Arthur Chaskalson
International Commission of Jurists
P.O. Box 216
1219, Châtelaine / Geneva
Switzerland
Fax: +41 22 9793801
Email: info@icj.org


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC)
Document Type :
Urgent Appeal Case
Document ID :
UA-177-2004
Countries :
Issues :
Document Actions
Share |
Subscribe to our Mailing List
Follow AHRC
Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.