Danilo Reyes, Editor, article 2
In January 14 to 18, I joined a group of regional labour and human rights workers and academics in a field investigation to look into the root causes and the impact of the January 2 and 3 violent crackdowns in Cambodia. Even before the mission concluded its field investigation, the testimonies I recorded from the victims, the families of the dead and eyewitnesses, it was clear that the use of force was excessive and deliberate with clear intention to either kill or cause grievous harm.
As I spoke to the victims, their families, activists and their organizations, asking details on the process of seeking redress for victims and to hold those responsible accountable could be achieved I began to understand, not only how justice is understood in Cambodia, but also why justice and accountability is impossible to achieve.
It is extremely challenging, if not downright difficult, for anyone trained in law or who has lived in a society where there is a possibility for agents of the State to be held accountable, to interpret situations in Cambodia. There, the meaning of the law and what the law is intended to protect, is not necessarily fundamental rights, but to perpetuate the existence of a political system that we have yet to fully understand. Thus, to interpret the crackdown of workers on January 2 and 3, purely by comparing or invoking Cambodia’s obligations in domestic and international law would be a limited approach.
In writing this article, rather than examining the incidents, testimonies of victims and witnesses, and the evidence that could point to clear violations of the Cambodian government, I decided to conduct interviews with the affected persons to better understand what their views are on justice and accountability. The views and opinions obtained tell us two things: first, the emerging thinking of what justice and accountability means in a post-genocide society; and second, how the understanding of these two principles evolved when there is no accountability.
Take for example, Sous Samoul, while it was clear to him that those who killed his son, Kim Phal Leap, must be held to account, he had no idea what he should do. He also could not understand why he has to keep the death certificate, a document given to him by a doctor who examined his son. In countries where the investigation mechanism is developed, forensic evidence is considered crucial evidence. In Cambodia, neither the doctor nor the families of the dead see its value as evidence.
When asked what legal action he would take, and what plans he had for the evidence he had on hand, he said:
I am not sure, and I have that question back. If I file a complaint, what should be in the complaint?
I am requesting …to help find justice for my son. Not just for my son but also for other injured workers and those who are arrested workers and put into jail.
When I shared this with local activists, I was told ‘it was because of ignorance, because most Cambodians in rural areas are illiterate’. The explanation may have some truth in it; however, I was not convinced that this is the case for Samoul. Why? Because Samoul himself is a member of the ruling party, the Cambodian People’s Party (CPP), and if anyone knows what one should do in seeking redress to grievances it should be them. I don’t think he is ignorant, I think he knows something.
Unlike Samoul who asked questions and took seriously about what he needs to do in seeking justice and to hold those who killed his son accountable, others simply assume the government ‘will take responsibility’ and ‘will provide compensation.’ Take the mother of 18-year-old Thet Theng, who suffers memory loss due to severe head injuries. When she was asked about what she demands from the government, she said:
They will take responsibility for this. They will provide compensation. That is what they said. We are hopeful that we will get the compensation.
For these two parents, while Samoul clearly understands that to get justice, he needs to undergo a process—which means he need to understand how he should file a complaint, and to whom he should file his complain—but, the absence of any precedence where the security forces have been arrested, detained, prosecuted, let alone, convicted for murdering those who protested against the government, has made Samoul’s simple question problematic.
In my view, the absence of any examples in Cambodia’s history where the security forces had been held to account for their crimes renders any discussion about seeking remedy and redress meaningless. Thus, it is understandable that one would have the least interest in talking about the possibility of justice. However, what alternatives are there for anyone interested, like Samoul, is pursuing remedy and redress? My discontent to negligible discussion about the processes of seeking remedy and redress in Cambodia’s criminal justice system lead me to ask those who knew how it was configured.
To obtain an insight to this, I spoke to Basil Fernando, a former senior officer at the Human Rights Centre at the now defunct United Nations Transitional Authority in Cambodia (UNTAC), regarding how Cambodia’s institutions of justice emerged (read this interview: “The possibility of justice does not exist in Cambodia“). In a book he wrote in July 1998, entitled “Problems Facing the Cambodian Legal System,” Fernando provides a thorough structural analysis why there can never be an investigation and prosecutions into violations committed by the government and the security forces acting upon its order.
I asked him why it is that victims are still demanding justice and accountability for the loss of lives. The answer was that none of the structural problems he raised 15 years ago were seriously considered, particularly on how the criminal justice institution processes ought to function to protect fundamental rights:
It is not a surprise that these people who have been engaged in protests and calling for change are not really talking about issues as to what happens to those who have been killed and what happens to those in prisons and things like that.
Why is it not a surprise? It is because the possibility of justice does not exist in Cambodia. Pol Pot’s regime wiped out whatever system that existed in Cambodia in terms of justice and democracy.
In Fernando’s view, the impact on the collective memory of the Cambodian people after the genocide of the Khmer Rouge regime was so deeply imbedded that it “wiped out whatever system that existed.” After the genocide, those who had played a major role in the rebuilding of Cambodia, like the Vietnamese, also brought in their ideas of what justice should mean and its relation to the state. However, they did this by drawing from their own country context:
…the next important issue is where the rebuilding of Cambodia took place, the new conception was introduced by the Vietnamese as mentors, these are people who are experts.
To that the Vietnamese also brought their conception of what the justice institutions are. They invented at that time what was known as the socialist model of jurisprudence or the Stalinist model. The person who was mainly responsible for ideologically reshaping that was called Andrey Vyshinsky.
Because Vietnam at that time was a communist country, and their intellectuals were trained in the Soviet Union, and in many other Eastern European Countries.
And the Constitution’s idea was based on socialism.
Fernando’s opinion is that the absence of justice in Cambodia took its roots from the very conception of its criminal justice institution, which is modelled after socialist jurisprudence, and this explains the grievances and discontent by many victims, families of the victims and local activists that I spoke to. Fernando distinguishes a socialist from a liberal democratic institution here:
Justice in this set-up (socialist model) means the protection of the State. The State needs to be protected from anybody who challenges the State, anybody who protests, anybody who does not accept the ideology of the state, the functioning of the state, those who question, all the people who are threatening the State.
So the principle was to turn the liberal democratic idea into the protection of the State from its own people. Citizens must behave as the State tells them how to behave. It is the citizens who had to be shaped in a particular way of thinking, in a particular way of obedience.
This explains why, Losh Sao, one of the protestors who demanded an increase of the minimum wage for garment workers, and who barely escaped death after he was shot in the back of his head, should not have been surprised at how the security forces reacted. But he nevertheless could not come to terms and could not understand why persons demanding of wage increase should be shot:
I saw one of the protestor who was shot dying on the street. He was bleeding profusely. I felt sorry for that person (the man who was shot and dying on street) because he was only demanding for increase of minimum wage, and the police just shoot him like that.
And, it should also not have been a surprise that, nearly two months after the incident happened, no credible investigation has ever been conducted by the government for the purpose of identifying those responsible for the deaths and wounding of the protester. Apart from the reports of the Fact Finding Mission (please see: “A week that shook Cambodia”) and the field investigation conducted by Prof. Surya Subedi, Special Rapporteur on the situation of human rights in Cambodia, in January 2014 the government did not investigate at all.
I asked Khong Athit, a Cambodian labour leader, for his views on how the government usually responds to demands and pressure when the security forces commit violations of rights. He said:
According to experience, there is always a Committee after a problem happened, but they are very unlikely to be effective. So we have very limited confidence on that Committee.
And, despite the wide publicity and pressure on the Cambodian government from the international community to hold the security forces responsible for the killing, wounding and detention of protestors, Athit noted:
Since the fact finding finished, the families of the dead still works with human rights organisations in filing a complaint against the murderer, the killer. They also plan to file complain in Cambodia court and also to international court.
Yes. None of them have been charged at the moment.
In other developed countries where the institutions of criminal justice are founded on the ideals of justice and democracy, to conduct an investigation, prosecution and trial for violations of criminal laws, whether committed by private persons or persons who are public figures, is a role their institutions take seriously.
In fact, the responsibility to investigate, prosecute and subject to trial agents of state—the police, military and public officials, who committed such violations, is considered to have higher importance in comparison to those perpetrated by private persons. It is grounded on an assumption that a State, who is supposed to enforce that law, must not violate the law.
However, judging from how the Cambodian government responded to the January 2 and 3 incidents, it is clear that: first, for the government to delay its investigation into the crackdown of workers, means they either felt no obligation to investigate or; second, if the State think they do not feel it is obliged to investigate, then there can never be prosecution and adjudication of cases in court at all. As a result of the unwillingness of the government to investigate, it is not likely that those who were killed, wounded will have any remedy; and those who suffer economic losses, will have relief.
To seek any form of relief many victims have resorted to accepting assistance from private individuals and NGOs. Say for example, in the absence of compensation from the Cambodian government, the wounded victims at the hospital had to line up in corridors or alleyways and waited for donations from foreign and domestic organisations, politicians, private persons, celebrities working for international organisations, and others.
The reason why the government did not feel the need to provide any compensation or assistance is because at the time of writing, none of those who gave orders to open fire on the protestors, the security forces who severely beat, arrested and detained the protestors, have been held to account. Clearly, unless the government accepts and recognizes what is has done there cannot be an official compensation and acknowledgement of the wrongdoing.
Clearly, the killing of four persons, the disappearance of one, the wounding of dozens of others, and the detention of 21 persons for demanding an increase of their minimum wage for the garment workers, cannot be taken lightly.
However, as is plainly evident by how the government responded to these demands, it shows that those responsible will never be held to account. Once again, at the time of writing, no action has been taken to identify those who gave orders to the security forces, or even the individuals who shot at the protestors. Interestingly, some of the victims were able to identify some of the individuals who shot at them. And, despite clear photographic and video recorded evidence of the identities of the security forces that opened fire with live ammunition, no effort has been made to initiate an investigation and prosecute them.
So if five (one of the victims has disappeared) people were shot dead, those five people will never get any relief by way of law in Cambodian courts. That really does not exist. There is no mechanism to investigate against the State. There is a certain rudimentary mechanism, like going into some things like small issues, like robbery or even murder; even that is not properly systematically developed in Cambodia.
But when it comes to a problem between the state and the citizens, no jurisprudence has been developed; there is no improvement.
However, despite the absence of the possibility of holding the perpetrators to account, keeping in mind Cambodia’s past—from the genocide in Khmer Rouge regime, and that its government has been in power for three decades—the Cambodians see these emerging protests as their watershed to have bigger democratic space. In fact, this is a crucial period in which the Cambodians should be supported.
In July 2013, the International Labour Organisation (ILO), indicated in their report titled, “Thirtieth Synthesis Report on Working conditions in Cambodia’s Garment Sector,” the increase of 170 percent in strikes during the period from 2010 to 2012. The report covers 152 and three garment and footwear factories respectively.
I asked Athit what his views are on the significance of these protests in the Cambodian context. He said:
Many people in Cambodia now are ready, but they still need motivation for them to fight against this authoritarian government, the fight against injustice will come soon in Cambodia.
I want the people in the world to know that we need solidarity. We need to work together to provide a concrete democratic rights to the people, and also to promote that the people should live in dignity. We have to fight together.
Cambodians alone cannot fight, cannot struggle for this better future unless the people around the globe and the people in the country who love democracy, loves dignity and support Cambodian people to overcome this hard struggle.
I also asked Prof. George Katsiaficas, author of the books on “Asia’s Unknown Uprisings,” what he thinks could have motivated the Cambodians to protest. Was it only because they wanted to have their salary increased or was it something else (read this interview: “People realized that they can make change“). And based on this emerging protest, what other effects this would have in the thinking of the ordinary Cambodians:
Not only in Asia but in most countries, when people are being starved, there will often be reactions that are immediate. And when situations are very desperate the people will react.
But in such a situation it is very difficult for people to formulate what kind of society they want to live in. Their immediate concern is feeding their families.
Hun Sen has been in power for years. The people realize that the terror of the Khmer Rouge days has passed. So there is some possibility of creating change within the present system itself no matter how limited the window of opportunity may be.
In conclusion, I am of the opinion that in emerging protests in Cambodia today we are witnessing profound aspirations amongst Cambodians to demand from their government that their fundamental rights be protected. But, as we have shown in this edition of article 2, the emerging protests in Cambodia in the last three years, notably the January 2 and 3 crackdowns of protesters, the government has clearly indicated its intolerance to any form of protest and dissent. They kill, injure, arrest, detain and prosecute anyone who challenges their authority without fear of repercussion.
In my view, the ability of the government to use force and violence to suppress anyone who opposed, should not only be condemned, but must be thoroughly understood. How can a country established, amongst others, by the UN by incorporating norms and standards of protection of fundamental rights, end up having no possibility of justice at all? The question is also significant to developing countries where people are demanding protection of rights as they emerge from their dictatorial past, like Indonesia and the Philippines.
However, despite the absence of the possibility of justice and accountability in Cambodia, the value of emerging protests demanding social and political change is unimaginable. What happened has provoked the imagination of the Cambodian people that, to protest demanding for protection of one’s rights is a fundamental right. I’m told that this kind of thinking is emerging due to the awareness of young Cambodians about democratic ideals. I was told a story about a young Cambodian from a rural village who had been taking video recordings of the street protests in Phnom Penh, and had shown it to his neighbours in the village. And to the surprise of the rural villagers, particularly the elderly Cambodians who were curious of the events in Phnom Penh, the young man was told: “Take more videos, show them to us. We have not seen this kind of thing before.”
It means while the Cambodians, who themselves lived in the horror of the genocide, have now realised the unimaginable. That they can protest against the government to demand protection of right.
Finally, there are even more challenges on how to transform the people’s aspiration into reality; so that they can see, not just imagine, that the government should be held to account for committing wrong doing to its own people. It means if living in dire condition is wrong, the government must correct this; if the government and its security forces gave orders to shoot at protestors, they must take full responsibility. Only in doing this would justice and accountability have a real meaning.
