Cambodia: Freedom of Expression and the Case of Rap Artist Kea Sokun

EXECUTIVE SUMMARY [1]

Kea Sokun, a 23-year-old rap artist from Cambodia, was arrested in September 2020 in response to two songs he posted on his YouTube page. Sokun was accused of inciting criminal activity under an overly broad interpretation of Article 495 of Cambodia’s criminal code. While there was no evidence that Sokun’s songs actually led to any criminal or violent activity, he was held in pretrial detention for nearly four months.

After being detained for an extended period during delays in the prosecution’s case, Sokun’s trial lasted for one hour wherein the prosecution presented the YouTube videos and a single statement from a police officer concluding that Sokun’s use of the phrases “rising up” and “standing up” amounted to incitement to violence. Sokun was sentenced to 18 months in prison, and the Court’s written judgement did not address any of the issues raised by Sokun’s defense counsel relating to the right to expression and the lack of proof that Sokun’s music incited any form of violence or criminal activity. Several months after the Court’s decision, Sokun still has not been able to seek an appeal.

Kea Sokun’s prosecution is not an isolated case; it is part of a larger trend. The Cambodian government has increasingly put in place repressive measures to stifle dissidents and opposing, critical voices. In 2020 alone, nearly 60 individuals have been convicted for what many allege are politically motivated charges to punish the defendants for their membership in Cambodia’s opposition political party. Meanwhile, in response to the global pandemic, the Cambodian government has declared a state of emergency that severely curtailed the right to freedom of expression or opinion, causing further erosion of civic space in Cambodia.

In accordance with its international and domestic legal obligations, the Cambodian government must protect Sokun’s right to appeal and release him from jail while the appeal process proceeds. The government must re-examine its broad over-use of Article 495 incitement charges and the COVID-19 state of emergency law that are being used to silence human rights activists, young musicians and artists, and members of the political opposition.

INTRODUCTION

Between August and September 2020, the Cambodian authorities launched a wave of arrests of young human rights activists and artists. [2] Mr. Kea Sokun, 22, is a rap artist  arrested and charged with “incitement" on September 4, 2020. [3] In late December, the Siem Reap provincial court convicted him of incitement to commit a felony under Article 495 of the Cambodian Criminal code.[4] While Sokun’s case raises issues concerning his rights to fair trial and freedom of expression, it is not an aberration in Cambodia. [5] It is one of many in a recent crackdown on young activists by the ruling Cambodian People’s Party (CPP). [6]

In recent years, the Cambodian government has intensified its curtailment of rights and civic freedoms and rapidly escalated its attempts to close civic space. Frivolous criminal charges are used to stifle dissidents and critical voices. Although Cambodia is a constitutional monarchy with an elected parliamentary body, one ruling party has dominated the political system for decades.

The CPP won all 125 National Assembly seats in the July 2018 national election. After cracking down on civil society for months and disbanding the opposition Cambodian National Rescue Party (CNRP), this election victory cemented Cambodia’s status as a de facto single-party state. [7]

In November 2020, the former U. N. Special Rapporteur on the Situation of Human Rights in Cambodia issued a statement, expressing grave concern over the mass trial of individuals associated with the CNRP. [8]  These issues were raised by eight U.S. Members of Congress on November 16, 2020, in a statement urging the U.S. Secretary of State “to address the alarming deterioration in human rights protection and democratic rule in Cambodia.” [9] The statement included a section briefly outlining five cases that exemplify the worsening conditions in Cambodia. Ultimately, the Congressmembers urged the U.S. government to respond alongside its allies to “send a strong message to the Cambodian Prime Minister that his crackdown on opposition and freedom of speech is unacceptable.” [10]

In January 2021, the Cambodian Prime Minister Hun Sen celebrated 36 years in power. [11] At the time of this writing, his party has allegedly wielded their political power to quell dissent, violating fundamental freedoms guaranteed by Cambodia’s Constitution and protected under international human rights law. [12] The international community have repeatedly expressed concern over torture, surveillance, the absence of judicial independence, censorship, among other issues. However, the government has failed to take any meaningful steps to address these violations. [13]

LEGAL AND POLITICAL CONTEXT

A.      Freedom of Opinion and Expression

Despite the Cambodian Constitution guarantees the protection of individuals’ rights to the freedom of opinion and expression under Article 41, the government has a record of systematically restricting people’s right to dissent.[14] The right to the freedom of opinion and expression is asserted in the Universal Declaration of Human Rights (UDHR) and codified in the International Covenant on Civil and Political Rights (ICCPR). This proclamation is specifically addressed in Article 19 of the ICCPR. [15] Since 1992, Cambodia has been a party to the International Covenant on Civil and Political rights along with several other human rights conventions.[16]

This is particularly significant because the 1991 Paris Accords set out a comprehensive framework for political settlement, which was agreed to by all parties in Cambodia. [17] The Accords specifically require that Cambodia abide by its international obligations to protect the human rights of its people. [18] Yet, as noted by Human Rights Watch, “[t]he international effort set in motion by the 1991 Paris Agreements has essentially failed” [19] due to the continued denial of basic human rights, especially the freedom of opinion and expression by Prime Minister Hun Sen and his party.

The right to freedom of opinion and expression remains a central issue that impacts other rights in Cambodia including the freedom of assembly and association, and the right to participate in public affairs, and the right to vote. [20] The Office of the United Nations High Commissioner for Human Rights in Cambodia (OHCHR Cambodia) clarifies that there is an inextricable link between the freedom of opinion and expression and the fulfillment of other fundamental freedoms. [21]

Leading up to the 2018 election, the party shuttered news publications and detained an unprecedented number of land rights activists, environmental activists, garment workers, trade unionists, [22] and members of the CNRP. [23] With the most vocal dissidents silenced and prior to the election, the CPP further dissolved the CNRP by a Supreme Court’s decision. [24]

Actions like these led to Cambodia’s designation as “not free” in Freedom House’s 2020 report. [25] Like many international non-governmental organizations (NGOs), Freedom House expresses its concern over the lack of free and fair elections, abuse of the judicial system, and suppression of opinion and expression. [26] Similarly, CIVICUS monitor rated the state of civic space as repressed. [27]

B.       Political Environment

According to a report by Human Rights Watch, the Cambodian government intensified  its repressive measures in the aftermath of the 2013 National Assembly election. [28] Major demonstrations erupted across the country, protesting reliable claims that the CPP influenced the National Election Committee (NEC). [29] At the same time, the CNRP rejected the election results and temporarily boycotted the National Assembly. [30] In response, the CPP took measures to repress the public’s discontent, not only targeting the CNRP and their supporters, but also other dissidents. [31] They imposed bans on peaceful protests [32] and escalated use of force, arbitrary detention, politically motivated prosecutions, suppression of labor protests, and control over the judiciary. [33]

After 2014, these practices became common, but it was not until 2017 that the human rights situation has deteriorated. [34]  In the years since the election, the CPP has continued repressing speech that supports the CNRP. The reach of CPP censoring power has expanded to include people that have no affiliation with the CNRP, including Radio Free Asia and Voice of America, whose broadcasting licenses were suspended in August 2018. [35] The past several years have resulted in a culture of fear and self-censorship. [36] This situation has exacerbated with the declared state of emergency in response to the global pandemic.

C.      Suppression of Freedom of Opinion and Expression in Cambodia

The Cambodian Constitution guarantees its citizens “freedom of expression of their ideas, freedom of information, freedom of publication, and freedom of assembly.” [37] Still, growing reports of censorship put the CPP’s adherence to its constitutional obligations into question. [38]

The international community has repeatedly expressed its concern over the restrictions of freedom of opinion and expression in Cambodia. [39] Mary Lawlor, the U.N. Special Rapporteur on the situation of human rights defenders, issued a statement calling for an “immediate end to the systematic detention and criminalization of human rights defenders, as well as excessive use of force against them.” [40] Special Rapporteur Lawlor’s call was endorsed by Rhona Smith, the former U.N. Special Rapporteur on the situation of human rights in Cambodia; and other mandates of the U.N. Human Rights Council. [41]

The Special Rapporteur reiterates the point made by many other international observers, stating:

The statement is one among many expressing concerns over the escalating systematic suppression by the Cambodian government. [43] On November 25, 2020, the U.N. Special Rapporteur on Cambodia issued a statement of concerning regarding the mass trials of CNRP activists on charges of conspiracy and incitement and called on Cambodia to “ open up civic space, protect and promote fundamental freedoms, including the rights to assembly and of expression, and to ensure the right to a fair trial for all.” [44]

The charge of incitement is so broad that the government can apply it in a variety of cases. [45]  The incitement provisions are outlined in Articles 494 and 495 of the Cambodian Criminal Code. [46] Article 494 (existence of incitement) states that “incitement is punishable when it is committed:

1. by speech of any kind, made in a public place or meeting;
2. by writing or picture of any kind, either displayed or distributed to the public;
3. by any audio-visual communication to the public.”^[47]

Article 495 (incitement to commit felony) is defined just as broadly:

“The direct incitement to commit a felony or to disturb social security by employing one of the means defined in Article 494 … of this Code shall be punishable by imprisonment from six months to two years and a fine from one million to four million Riels, where the incitement was ineffective.” [48]

Together, Articles 494 and 495 form a vague charge that some say is left open to politically motivated misuse. [49] The Cambodian Human Rights and Development Association (ADHOC), a Cambodian NGO, further noted “the implementation by the authority was not in accordance with the law when used against political activists, social and environmental activists, as well as ordinary people.” [50]

Additionally, the government has passed several laws as Cambodia deals with the global COVID-19 pandemic. During the COVID-19 pandemic, the Cambodian prime minister and the CPP passed a series of laws that limited civil and political rights. [51] In April 2020, the CPP passed a state of emergency law through the Cambodian Parliament that gives the government ample power to suppress freedom of expression, association, and assembly. [52]

The state of emergency law limits freedom of expression and assembly, as well as allowing the government nearly unlimited rights to conduct surveillance of telecommunications and to control of all media sources. [53] Further, another section in the law grants the government power to put in place any measures “deemed appropriate for and necessary to responding to the state of emergency.” [54]

D.      Fair Trial Rights

Despite the constitutional guarantee, violations of  due process rights are in the increase. [55] A report released by the U.S. Department of State in 2019 determined that the government detained a number of activists who were subject to “harsh treatment” during their incarceration. [56] When detained, the accused are often held for longer than the law’s maximum pretrial detention period. [57] Addressing the judiciary, the State Department’s report concludes that “[c]orruption among judges, prosecutors, and court officials was widespread... [t]he judicial branch was very inefficient and could not assure due process.” [58]

Other organizations have reiterated the lack of independence in Cambodia’s judiciary. [59] Despite Article 51 of Cambodia’s Constitution affirming the separation of legislative, executive, and judicial powers, reports indicate that the judiciary lacks independence. [60] At the end of 2020, the Bertelsmann Transformation Index criticized the executive branch’s domination and capturing of the judicial system, concluding that Cambodian courts “offer proof that they are not independent, but subordinate to the executive.” [61]

The increasing number of violations of due process situate themselves in the broader conflict between the CPP and activists associated with the now defunct CNRP. [62]

On January 14, 2021, a Cambodian court began a mass trial of 60 CNRP activists. [63] All 60 are “charged with ‘plotting’ and ‘incitement,’ and face a maximum of 12 years in prison if found guilty.”[64] Another mass trial of 77 people facing the same charges began on March 4, 2021. [65]

The CPP’s omnipresent influence over political and legal processes fosters an environment that criminalizes free expression and gives little recourse to the accused. During the recent wave of arrests, Kea Sokun, a rapper, was subjected to frivolous criminal charges for exercising his right to freedom of expression.

CASE HISTORY

Kea Sokun is a Cambodian rapper whose notoriety was rising since he posted his first YouTube video in April 2017. [66] Only 22 years old at the time of his arrest, Sokun’s YouTube and TikTok videos cultivated a fan base that continues to grow while he is subject to detention. [67] As of January 2021, one version of “Dey Khmer” had 4.95 million views.[68] Based in Siem Reap, Sokun was arrested and charged with “incitement to commit a felony” in September 2020. [69] The charge is said to be on the basis of two songs he released in 2020.” [70]

Prior to his arrest on September 4, 2020, Sokun had no criminal record and no official connection with any political party. [71] Since 2015, Sokun produced his own lyrics for nearly 35 songs he released through his YouTube channel.  He was arrested for the lyrical content of his popular songs “Dey Khmer” or “Khmer Land” in English and “Sas Kamsot” or “Sad Race” in English. [72] The song “Dey Khmer” includes lyrics that address Chinese investment in Cambodia, government suppression of rights, and the long-standing debate over the Cambodian-Vietnamese border. [73]

Sokun was charged under the criminal code article 494 and 495 concerning incitement.[74]  Before his trial on November 26, 2020, Sokun was denied bail and subsequently held at Siem Reap Provincial Correctional Center.[75] On November 26, 2020, Kea Sokun was summoned to the Siem Reap court, where his hearing took place. [76] The single hearing lasted just over an hour, and the prosecution made little to no effort to include inculpatory evidence, opting to portray Sokun’s guilt as a foregone conclusion instead. [77]

During his trial, Sokun was subjected to extensive interrogation by the presiding judges.[78] The questions revolved around Kea Sokun’s intentions when releasing the song. [79] He repeatedly denied that he intended to inspire illegal demonstrations, felonies, or violence. [80] The judges directly questioned the opinions expressed by Kea Sokun, including those relating to conflicts along the Vietnamese border. [81]

The prosecution homed in on their assertion that Sokun knew his song would incite criminal activity by others- despite a lack of evidence that his discography incited a single crime. [82] During and after the proceedings, he responded that he had no intention of encouraging anyone to commit a felony or create civil unrest.

The most consequential moment of the hearing came when the Ministry of Justice’s attorney asked Kea Sokun whether he admitted wrongdoing for releasing the song. [83] Likely knowing the importance of this question in relation to the determination of his case, Sokun admitted to no misconduct. [84]

At closing argument, the prosecution asserted that “word choices used in Sokun’s song were very troubling and causing incitement. [85] The prosecutor alleged that those words, including “rising up” and “standing up,” were used to incite people, and that these acts violated Articles 494 and 495 of the Cambodian Criminal Code. [86] The defense attorney for Sokun countered that the intention of his song was to encourage people to work hard when they struggle in life and had no intention to incite anything. Additionally, the defense counsel argued:

On December 22, 2020, Kea Sokun returned to the Siem Reap court, where he was found guilty of incitement to commit a felony under Article 495 of the Criminal Code. [87] Apart from characterizing Sokun’s lyrics as “offensive,” the prosecuting attorney provided no evidence that “Dey Khmer” incited a crime. [88] Sokun was sentenced to 18 months in prison, of which six months was suspended. [89] His arrest and conviction drew the attention of numerous domestic and international organizations, which called for his release, but Sokun does not have an appeal date scheduled. [90]

ANALYSIS

A.      Investigation and Pretrial Stage Violations

The United Nations Human Rights Committee explains that the notion of arbitrary detention must be “interpreted broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law as well as elements of reasonableness, necessity and proportionality.” [91] Additionally, pretrial detention should be reserved for a small subsection those accused of crimes. [92] The purpose of pre-trial detention should be to prevent the accused  from tampering with evidence, committing the crime again, or leaving the country. [93]

Article 9 of the ICCPR has four clear sections, which lay out well-defined specifications for pre-trial rights. [94] Section 3 of Article 9 includes the provision that “anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.” [95]   According to domestic laws [96] and the ICCPR, the Cambodian authorities should weigh the necessity of pretrial detention for an individual charged with a crime. [97] This is especially pertinent as Cambodian prisons are already significantly overcrowded, which has proven to be dangerous as COVID-19 spreads across the country. [98]

Pretrial detention poses dangers to both the right to fair trial and the right to health and life as Cambodia deals with COVID-19. In response to prison conditions, Amnesty International called for an end to the overpopulation, calling it a “ticking time bomb for a COVID-19 outbreak.” [99]  In late 2020, Amnesty International, Human Rights Watch, and Cambodian League for the Promotion and Defense of Human Rights (LICADHO) issued a joint statement calling for the Cambodian government to take urgent action to protect incarcerated people from contracting COVID-19. [100]

During the COVID-19 pandemic, states are taking measures to ensure physical distancing, which becomes difficult or impossible in over-crowded prison facilities. Therefore, measures to combat COVID-19 would require the government to pursue alternative routes to filling prisons, especially in cases involving non-violent charges. [101] Rather than placing more defendants in jail pre-trial, the courts can grant bail or commission the use of monitoring devices to ensure that the accused is present during their trial while also being safe from contracting COVID-19 in jail. [102]

Cambodian courts do not reserve pretrial detention for those who pose a threat or flight risk.[103] This is true in several cases, including Sokun’s. According to an NGO providing legal support to Kea Sokun, no substantiated justification to impose pretrial detention in Sokun’s case had been proffered by the government. [104] In October 2020, while denying Sokun’s bail request, the court relied on general pronouncements regarding threats of interference with the legal proceedings and preservation of the accused individual to appear before the court because Sokun had not acknowledged the wrongdoing. The court did not undertake an individualized assessment of Sokun’s specific circumstances relating to flight risk, likelihood of repeating the crime, or tampering with evidence in his case. [105] Without this individualized assessment, Sokun was held by the authorities for four months prior to his sentencing. [106]

B.     Fair Trial Issues

Article 14 of the ICCPR outlines the rights of people charged with a criminal offence, in particular Section 2 states that anyone charged with a crime shall be presumed innocent until proven guilty according to the law. [107] Based on the stringency of his pretrial detention, the short length of his trial, and the lack of credible inculpatory evidence provided by the prosecution, it appears that Sokun’s right to a fair trial were violated. [108]

Furthermore, Article 14 (3c) entitles every person charged with a crime the right to be tried without undue delay. [109] It appears that Sokun’s case was delayed for an unreasonable amount of time. Although his court hearing only lasted one hour and the defense provided no evidence other than Sokun’s song, he was held for an excessive period of time prior to his trial. [110]

C.     Right to a Duly Reasoned Judgment and Right to Appeal

In Sokun’s case, the court convicted him based on the testimony made by a police officer, who was the only witness in the case, and the indictment made by the prosecution.[111] The witness told the court that the contents of Sokun’s song about social issues, inequality between the rich and the poor, and corruption were inciting. These were purported to be sensitive and critical of the Cambodian government. [112] Meanwhile, the prosecution did not present any concrete evidence of causation between the contents of Sokun’s songs and actual incitement to commit the felony that he was charged with as there had not been any indication of social disorder and unrest caused by Sokun’s songs.

Notwithstanding the prosecution’s failures to prove Sokun’s guilt beyond reasonable doubt, the court found him guilty of incitement to commit a felony under Articles 494 and 495 of the Cambodian Penal Code and sentenced him to an 18 month prison term, with six months’ suspended imprisonment sentences. [113] The court did not explain the decision to dismiss the defense counsel’s arguments. [114] Specifically, the court paid little attention to the assertion that Kea Sokun was protected by the right to freedom of expression. [115]

The court did not engage with the defense contention that Sokun had no intent to incite a felony.[116] Instead, the court concluded that Kea Sokun’s words “rising up” and “standing up” actively sought to incite felonies and encourage people to gather against the government. [117]

In spite of guarantees under international human rights law and Cambodian law,[118] the court did not provide the public with sufficient grounds for Kea Sokun’s conviction. [119] This not only violates international principles relating to fair trial, but also has implications for Sokun’s right to an appeal. Article 14 (5) of the ICCPR gives everyone the right to appeal. The United Nations Human Rights Committee explicitly states this, saying the right to appeal is only possible with a “duly reasoned” written judgement.[120] Without a rationale for a verdict, the defendant cannot challenge the decision itself. [121]

After his conviction, Sokun requested the Appeal Court to hear his case. [122] Under Cambodian [123] and international law, he has the right to do so, [124] but this case brings about a unique set of challenges. Without clear and proper reasoning for the original conviction, there is little for an appeals court to reconsider. As of March 2021, Sokun has not been afforded his right to appeal a case involving extended pre-trial detention, a lack of inculpatory evidence, and a delayed trial commencement, Sokun is left with no recourse.

D.     Chilling Impact on Freedom of Expression or Opinion

Article 19 of the ICCPR and Article 41 of Cambodia’s Constitution ensure the right to freedom of opinion and expression. [125] According to the United Nations Human Rights Committee, restrictions on freedom of expression must serve a rational objective, be enumerated in law, and be proportional. [126] The ICCPR clarifies that legitimate intentions to restrict freedom of expression are (i) for respect of the rights or reputations of others, and (ii) for the protection of national security or of public order of public health or morals. [127] Legally, laws limiting freedom of expression must be “formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly … [and] may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.” [128]

During 2020, the Cambodian government expanded the scope and use of Article 495, applying the term “social order” to an excessive number of non-violent political speeches including Kea Sokun’s case. [129] The broad application of Article 495 does not align with international standards or UN provisions. [130] In contrast to recent Cambodian legislation, the U.N. Special Rapporteur on Freedom of Expression notes that restrictions on expression “must be provided by laws that are precise, public and transparent; it must avoid providing authorities with unbounded discretion…” [131]

Restrictions like these are made possible by a broad interpretation of Article 495 of Cambodia’s Criminal Code, which criminalizes “direct incitement to commit a felony or to disrupt social order.” [132] Incitement to commit a felony or “disrupt social order” is not defined, leaving it open to interpretation and overuse by governmental agencies. Ultimately, this lack of clarity makes it challenging for citizens to regulate their conduct in accordance with the law.

The restriction on freedom of speech embodied in an over-broad use of Article 495, however, does not comply with international law if the desired protection could be achieved through less restrictive means, [133] as restrictions must be the “least intrusive instrument amongst those which might achieve their protective function.” [134] The imprecise language of Article 495 allows for wide interpretation and violates the principle of legality. Article 495’s criminalization of “incitement to commit a felony or disrupt social order” seems to grant the government with the ability to enforce the law as they see fit, rather than in accordance with international law. [135]

Further, Article 19 specifically enshrines an individual’s right to artistic expression. [136] In 2015, 53 states issued a statement reaffirming the importance of freedom of artistic expression. [137] The statement takes aim at the arbitrary detention of artists and censorship of their work stating:

“Artists in many parts of the world are facing violations of their human rights. In some cases, artists are even murdered, beaten, facing death threats, arbitrarily detained, their work censored or criminalized, their art and instruments destroyed.  We condemn such violations.  We strongly believe that reactions to controversial artwork should be expressed not through violence but through dialogue and engagement that are based on the exercise of the rights to freedom of expression and peaceful assembly.  States must protect against and ensure accountability for violations of the right to freedom of expression.” [138]

The inconsistent and excessive application of Article 495 in Sokun’s case violates his artistic rights, as he faces over a year in prison merely for using the phrases “rising up” and “standing up” in his music. [139] His actions did not in fact incite any violence but many see the case as an attempt by the Cambodian government to silence young musicians who criticize conditions within the country.

CONCLUSION AND RECOMMENDATIONS

Kea Sokun maintained throughout his trial hearing that he did not intend to incite any social chaos, and that rapping was his profession to support his poor family. However, the prosecution had the burden to prove beyond reasonable doubt Kea Sokun’s guilt, which it failed when it presented no evidence relating Sokun’s music to any real-world violence. Despite a clear lack of evidence and establishment of Sokun’s intention by his word choices in his rapping songs to incite any social chaos, the court still found him guilty of charges by broadly interpreting the provisions of Article 495 of Cambodia’s criminal code.

Both the prosecution and court have failed in their legal obligations to perform their roles in finding the truth and providing justice duly in line with Cambodian law and the ICCPR. The arrest and imprisonment of Kea Sokun in an ongoing trend of cracking down on human rights defenders and activists in Cambodia will have a chilling effect not only on civil society actors, but also on ordinary individuals who express their views about social issues. Harsh legal actions against individuals expressing their opinions or being critical of government policies will lead to further self-censorship while civic space in Cambodia has been closing.

Recommendations to the Royal Government of Cambodia:

1. Protect Sokun’s right to appeal, by providing an authentic opportunity to challenge his detention and conviction through appeals to a higher court;
2. Provide Sokun with bail while he is mounting his appeal to ensure that he does not contract COVID-19 in already-overcrowded prison facilities in Cambodia;
3.  Ensure that Cambodia is fully committed to respecting its obligations under ICCPR and that no criminal charges or punishments should be brought against individuals who exercise their right to freedom of expression and other fundamental human rights;
4. Provide further capacity trainings for police, prosecutors, and judges on the application of incitement offenses under the Cambodian Penal Code to ensure that adequately admissible evidence satisfies both the legal requirement of proving an offender’s intention to commit an offense and international standards and practices under international human rights law;
5. Create an enabling legal environment for Cambodian civil society actors and individuals to operate and express themselves freely and independently.

ENDNOTES

[1] This report was prepared by staff and consultants of the American Bar Association, Center for Human Rights and reflects their views. It has not been approved by the House of Delegates or the Board of Governors of the American Bar Association and therefore should not be construed as representing the policy of the American Bar Association as a whole. Further, nothing in this report should be considered as legal advice in a specific case.

[2] Ouch Sony, Activist Tailed by Police, Sought Help From UN Before Arrest, Voice of Democracy (VOD) (Sep. 8, 2020), https://vodenglish.news/activist-tailed-by-police-sought-help-from-un-before-arrest/.

[3] Cambodia: Youth Targeted in ‘Shocking’ Wave of Arrests, Amnesty Int’l (Sep 10, 2020), www.amnesty.org/en/latest/news/2020/09/cambodia-youth-targeted-shocking-arrests/.

[4] Two Rappers Convicted of Incitement, LICADHO: Cambodian League for the Promotion and Defense of Human Rights (Dec. 22, 2020), www.licadho-cambodia.org/flashnews.php?perm=283.

[5] Supra note 3.

[6] Id.

[7]  Statement, Office of the United Nations High Commissioner for Human Rights (OHCHR), Statement by Special Rapporteur on Cambodia to 39th Session of the Human Rights Council (Sep. 26, 2018), www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23639&LangID=E.

[8] Press Release, Office of the United Nations High Commissioner for Human Rights (OHCHR), Cambodia: UN expert alarmed by reports of mass trial of activists (Nov. 25, 2020), www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26544&LangID=E.

[9] Letter from Edward Markey, Elizabeth Warren, Dianne Feinstein, Ted Yoho, Lori Trahan, Robert Casey, Alan Lowenthal, & Seth Moulton, United States Senators, to Mike Pompeo, United States Secretary of State (Nov. 16, 2020), https://www.markey.senate.gov/imo/media/doc/(11.16.2020)%202020-11-11%20Letter%20to%20Sec%20Pompeo%20on%20Cambodia_with%20sigs_PDF.pdf?fbclid=IwAR31Va5BgDw6OTaYJv_t7XE2HMZErYbRJO1CkFAxxeAXo7EgvhFYUreNT-0.

[10] Id.

[11] Ben Sokhean, PM Marks 36 Years in Power with Both Praise and Criticism, Khmer Times (Jan. 14, 2021), www.khmertimeskh.com/50803835/pm-marks-36-years-in-power-with-both-praise-and-criticism/.

[12 ]Human Rights Watch, World Report 2021: Events of 2020, 129-32 (2020), https://www.hrw.org/sites/default/files/media_2021/01/2021_hrw_world_report.pdf.

[13] Id.; U.S. Dep’t of State, country reports on human rights practices: Cambodia – 2019, 33 (2020), https://www.state.gov/wp-content/uploads/2020/02/CAMBODIA-2019-HUMAN-RIGHTS-REPORT.pdf.

[14  U.S. Dep’t of State, supra note 13.

[15] Cambodia Const., art. 41, www.constituteproject.org/constitution/Cambodia_2008.pdf?lang=en (unofficial translation).

[16] Ratification Status for Cambodia, U.N. Human Rights Treaty Bodies, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=29&Lang=EN

[17] See generally Final Act of the Paris Peace Conference on Cambodia, U.N. SCOR, 46th Sess., Annex, U.N. Doc. A/46/608 & S/23177 (1991), reprinted in 31 I.L.M. 174 (1992), https://peacemaker.un.org/sites/peacemaker.un.org/files/KH_911023_FrameworkComprehensivePoliticalSettlementCambodia.pdf.  

[18] Id. at ¶ 12 (“Above all, in view of the recent tragic history of Cambodia, the States participating in the Conference commit themselves to promote and encourage respect for and observance of human rights and fundamental freedoms in Cambodia, as embodied in the relevant international instruments to which they are party.”).

[19] Cambodia Crackdown Cruses Media, Opposition, Human Rights Watch (Jan. 18, 2018), https://www.hrw.org/news/2018/01/18/cambodia-crackdown-crushes-media-opposition.

[20] See id.; Human Rights Comm., General Comment 34, Article 19: Freedoms of opinion and expression, adopted Sept. 12, 2011, U.N. Doc. CCPR/C/GC/34, ¶¶ 4, 20 [hereinafter HRC GC 34].

[21] Supra note 19.

[22] See American Bar Association Center for Human Rights, Cambodia: Report on Prosecution of Six Independent Trade Union Leaders 5, 7, 8, 24 (2020), https://www.americanbar.org/content/dam/aba/administrative/human_rights/justice-defenders/prosecution-trade-union-leaders.pdf.

[23] Human Rights Watch, World Report 2018: Events of 2017, 114 (2018), https://www.hrw.org/sites/default/files/world_report_download/201801world_report_web.pdf.

[24]  U.S. Dep’t of State, supra note 13, at 17-18.

[25] Freedom in the World 2020: Cambodia, Freedom House, https://freedomhouse.org/country/cambodia/freedom-world/2020 (last visited May 22, 2021).

[26] Id.

[27] Cambodia, CIVICUS, https://monitor.civicus.org/country/cambodia/ (last visited May 22, 2021).

[28] Human Rights Watch, World Report 2014: Events of 2013, 313-14 (2014), https://www.hrw.org/sites/default/files/wr2014_web_0.pdf

[29]  Id. at 313.

[30] Human Rights Watch, World Report 2015: Events of 2014, 133 (2015), https://www.hrw.org/sites/default/files/world_report_download/wr2015_web.pdf.

[31] Id.

[32] Id.

[33] See id. at 133-36; Mong Palatino, Protests, Strikes Continue in Cambodia, The Diplomat (Feb. 19, 2014), https://thediplomat.com/2014/02/protests-strikes-continue-in-cambodia/.

[34] Amnesty International, “Cambodia 2020.” https://www.amnesty.org/en/countries/asia-and-the-pacific/cambodia/report-cambodia/. “The extreme restrictions on civil and political rights implemented since 2017 intensified…”

[35]  Hul Reaksmey, Cambodia Must End Legal Attacks on Media, Rights Groups Say, Voice Of America, (Nov. 5, 2020), https://www.voanews.com/press-freedom/cambodia-must-end-legal-attacks-media-rights-groups-say

[36] See Supra note 19. At 11. 

32 Int’l Pol. Sci. Rev. 546, 546-47 (2011).

[37] Cambodia Const., art. 41.

[38] U.S. Dep’t of State, country reports on human rights practices: Cambodia – 2020, 33 (2021),  https://www.state.gov/wp-content/uploads/2021/03/CAMBODIA-2020-HUMAN-RIGHTS-REPORT.pdf at 13.  

[39]  Press Release, OHCHR, Cambodia’s state of emergency law endangers human rights, warns UN expert (Apr. 17, 2020), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25801&LangID=E;  UN experts sent a communication expressing concerns over Cambodia’s draft law on the management of the nation during state of emergency, OHCHR Cambodia (Apr. 9, 2020), https://cambodia.ohchr.org/en/news/un-experts-sent-communication-expressing-concerns-over-cambodia-draft-law-management-nation; Press Release, OHCHR, Cambodia: UN Experts Express Concerns about Media Freedoms Ahead of Vote (June 15, 2018), www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23205&LangID=E; Human Rights Watch Concerns and Recommendations on Cambodia Submitted to the UN Human Rights Committee in Advance of Its Pre-Sessional Review of Cambodia, Human Rights Watch (Mar. 4, 2015), www.hrw.org/news/2015/03/04/human-rights-watch-concerns-and-recommendations-cambodia-submitted-un-human-rights.

[40]  Press Release, OHCHR, Cambodia: UN experts alarmed by civil society crackdown, attacks on defenders (Nov. 16, 2020), https://cambodia.ohchr.org/sites/default/files/UN%20experts%20alarmed%20by%20civil%20society%20crackdown%2C%20attacks%20on%20defenders_Final_EN.pdf.

[41] Id.

[42] Supra note 8.

[43] See Cambodia: Crackdown Crushes Media, Opposition, Human Rights Watch (Jan. 18, 2018), www.hrw.org/news/2018/01/18/cambodia-crackdown-crushes-media-opposition.

[44] Supra note 8.

[45] Press Release, OHCHR, Cambodia: UN experts concerned at Government moves to silence political opponents (June 19, 2019), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24711&LangID=E.

[46] See Criminal Code arts. 494, 495 (Cambodia), https://www.ajne.org/sites/default/files/resource/laws/7195/criminal-code-cambodia-en-kh.pdf (unofficial translation).

[47] Id. at art. 494.

[48]  Id. at art. 495.

[49] Ben Sokhean, Unjustified Request: Ministry Rejects US-Based NGO’s Call to Repeal Law on Incitement, Khmer Times (Nov. 23, 2020), www.khmertimeskh.com/50785397/unjustified-request-ministry-rejects-us-based-ngos-call-to-repeal-law-on-incitement/.

[50] Id.

[51] Cambodia: End Crackdown on Opposition, Human Rights Watch (June 17, 2020), www.hrw.org/news/2020/06/17/cambodia-end-crackdown-opposition; Aun Chhengpor, Sun Narin, & Kann Vicheika, ‘State of Emergency’ Draft Law Gives Gov’t Sweeping Powers; Permits Human Rights Restrictions, Voice of America (VOA) (Mar. 31, 2020), www.voacambodia.com/a/state-of-emergency-draft-law-gives-gov-t-sweeping-powers-permits-human-rights-restrictions-/5353728.html.

[52]Chhengpor, Narin, & Kann, supra note 51.

[53] See Law on the Management of the Nation Emergencies, art. 5 (Cambodia) (unofficial translation), https://akp.gov.kh/post/detail/29564.

[54] Cambodia: Emergency Bill Recipe for Dictatorship, Human Rights Watch (Apr. 2, 2020), www.hrw.org/news/2020/04/02/cambodia-emergency-bill-recipe-dictatorship.

[55] Supra note 25.

[56] U.S. Dep’t of State, supra note 13 at 4.

[57] Id. at 6.

[58] Id. at 7.

[59] Cambodia Country Report 2020, Bertelsmann Transformation Index, https://www.bti-project.org/en/reports/country-report-KHM-2020.html#pos5 (last visited May 22, 2021).

[60] Supra note 38. “The constitution provides for an independent judiciary, but the government did not respect judicial independence, exerting extensive control over the courts. Court decisions were often subject to political influence. Judicial officials, up to and including the chief of the Supreme Court, often simultaneously held positions in the ruling party, and observers alleged only those with ties to the ruling Cambodia People’s Party (CPP) or the executive received judicial appointments. At times the outcome of trials appeared predetermined…”

[61] Supra note 59.

[62] Supra note 8.

[63] Ananth Baliga, Cambodia Begins Mass Treason Trial of Opposition Activists, Al Jazeera (Jan. 14, 2021), www.aljazeera.com/news/2021/1/14/cambodia-begins-mass-conspiracy-trial-against-ex-opposition-party.

[64] Id.

[65] Id.

[66] Kea Sokun, I Phone Newsong, YouTube (Apr. 24, 2017), www.youtube.com/watch?v=Ww7tZbiYLqI.

[67] Kea Sokun, Rapper 2020, YouTube (Apr. 26, 2020), www.youtube.com/watch?v=dWV8JMdUyNw.

[68] Kea Sokun, Meng Ger -Kea Sokun- Mrzz Fii Ra (Beat By: Meng Ger), YouTube (June 30, 2019), www.youtube.com/watch?v=9mFi4sf1hao.

[69] Cambodia: Youth Targeted in “Shocking” Wave of Arrests, Human Rights Watch (Sep. 10, 2020), www.amnesty.org/en/latest/news/2020/09/cambodia-youth-targeted-shocking-arrests/.

[70] Id.

[71] Khan Leakhena, Rapper, TikTok User Arrested for Airing Critical Views, VOD (Sep. 10, 2020), https://vodenglish.news/rapper-tiktok-user-arrested-for-airing-critical-views/.

[72] See supra note 69; Cambodia Court Jails Rappers for Rhymes Inciting Crimes, Voice of America (Dec. 22, 2020).

[73] Mech Dara, Court Reviews Jailed Rappers’ Nationalist, “Bravery to Stand Up” Lyrics, VOD (Nov. 26, 2020), https://vodenglish.news/court-reviews-jailed-rappers-nationalist-bravery-to-stand-up-lyrics/.

[74] Supra note 12; supra note 54.

[75] Supra note 73; Interview with anonymous legal NGO, in [redacted] (Feb. 2021) (notes on file with author).

[76] Monitor’s Notes, Criminal Case # 1085, Registered Sept. 5, 2020, (Nov. 26, 2020 hearing) (on file with the author).

[77] Id.

[78] Id.

[79] Id.

[80] Id.

[81] Id.

[82] Id.

[83] Id.

[84] Id.

[85] Id.

[86] Id.

[87] Supra note 4. 

[88] Monitor’s Notes, Criminal Case # 1085, Registered Sept. 5, 2020, (Dec. 22, 2020 hearing) (on file with the author). 

[89] Supra note 4. 

[90] Supra note 69; Arrests of Activists Dangerously Escalate While Draft Public Order Law Draws Flak in Cambodia, CIVICUS (Oct. 16, 2020), https://monitor.civicus.org/updates/2020/10/16/arrests-activists-dangerously-escalate-while-draft-public-order-law-draws-flak-cambodia/; Sebastian Strangio, Two Rappers Convicted of “Incitement” in Cambodia, The Diplomat (Dec. 23, 2020), https://thediplomat.com/2020/12/two-rappers-convicted-of-incitement-in-cambodia/; Joshua Lipes, Cambodia Arrests Second Rapper in Days Over Politically Charged Rhymes, Radio Free Asia (Sep. 15, 2020), www.rfa.org/english/news/cambodia/rapper-09152020145758.html.

[91] Oscelik v. Turkey, Human Rights Comm. Decision, No. 2890/2017, ¶ 9.3, U.N. Doc. CCPR/C/125/D/2980/2017 (2019).

[92] Cedeno v. Bolivarian Republic of Venezuela, Human Rights Comm. Decision, No. 1940/2010, ¶ 7.10, U.N. Doc. CCPR/C/106/D/1940/2010 (2012) [hereinafter Cedeno v. Venezuela].

[93] Marinich v. Belarus, Human Rights Comm. Decision, No. 1502/2006, ¶ 10.4, U.N. Doc. CCPR/C/99/D/1502/2006 (2010) [hereinafter Marinich v. Belarus].

[94]International Covenant on Civil and Political Rights, art. 9, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR].

[95] Id.

[96] See Code of Criminal Procedure art. 203 (Cambodia) (unofficial translation), https://www.wipo.int/edocs/lexdocs/laws/en/kh/kh032en.pdf.

[97] See Human Rights Comm., General Comment 35, Article 9 (Liberty and security of person), adopted Dec. 16, 2014, U.N. Doc. CCPR/C/GC/35, ¶ 38 [hereinafter HRC GC 35]; Cedeno v. Venezuela, ¶ 7.10; Van Alphen v. Netherlands, Human Rights Comm. Decision, No. 305/1988, ¶ 5.8, U.N. Doc. CCPR/C/39/D/305/1988 (1990) [hereinafter Van Alphen v. Netherlands]; Marinich v. Belarus, ¶ 10.4; Mukong v. Cameroon, Human Rights Comm. Decision, No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994).

[98]See Overcrowded Detention Centres in Cambodia a “Ticking Time Bomb” for COVID-19, Amnesty International (Mar. 27, 2020), www.amnesty.org/en/latest/news/2020/03/cambodia-overcrowded-detention-centres-covid-19-raft-fake-news-arrests/; Rife with Torture and Corruption, Cambodia Must Overhaul Its “War on Drugs,” Amnesty International (May 13, 2020), www.amnesty.org/en/latest/news/2020/05/cambodia-abusive-war-drugs-torture-corruption-must-overhauled/.

[99] Id.

[100] Joint Statement: Cambodia: Urgently Protect Prisoners From COVID-19, Human Rights Watch (Dec. 8, 2020), www.hrw.org/news/2020/12/08/joint-statement-cambodia-urgently-protect-prisoners-covid-19.

Joint Statement, U.S. Dep’t of State, Joint Statement on the Universal Declaration of Human Rights (Dec. 10, 2020), https://usun.usmission.gov/joint-statement-on-the-universal-declaration-of-human-rights/.

[101] Id.

[102] See HRC GC 35, ¶ 38; Cedeno v. Venezuela, ¶ 7.10; Van Alphen v. Netherlands, ¶ 5.8; Marinich v. Belarus, ¶ 10.4; Mukong v. Cameroon, ¶ 9.8.

[103] Id.

[104] Interview with anonymous legal NGO, in [redacted] (Feb. 2021) (notes on file with author).

[105] Id.

[106] Supra note 4; Paul English & David Berry, Open Society Justice Initiative, The Socioeconomic Impact of Pretrial Detention (2010), https://www.justiceinitiative.org/uploads/84baf76d-0764-42db-9ddd-0106dbc5c400/socioeconomic-impact-pretrial-detention-02012011.pdf

[107]  ICCPR, art. 14.

[108] Supra note 4; Monitor’s Notes, Criminal Case # 1085, Registered Sept. 5, 2020, (Nov. 26, 2020 hearing) (on file with the author).

[109] ICCPR, art. 14.

[110] Supra note 4.

[111] See generally Kea Sokun, Judgement on the Conviction, Siem Reap Provincial Court, Dec. 22, 2020 (on file with author).

[112] Id. at 8, 9.

[113] Id. at 10, 11.

[114]  Id.

[115] Monitor’s Notes, Criminal Case # 1085, Registered Sept. 5, 2020 (on file with the author).

[116]] Supra note 111.

[117] Id.

[118] See Code of Criminal Procedure art. 357 (Cambodia) (unofficial translation), (“…The right to a reasoned judgment requires the court to examine each of the charges and arguments presented during the trial and to respond to the written arguments submitted by any party…”);  ICCPR, art. 14 (“…[A]ny judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”).

[119] Supra note 111.

[120]  Human Rights Comm., General Comment 32, Article 14: Right to equality before courts and tribunals and to a fair trial, adopted Aug. 23, 2007, U.N. Doc CCPR/C/GC/32, ¶ 49 [hereinafter HRC GC 32]; Van Hulst v. Netherlands, Human Rights Comm. Decision, No. 903/1999, ¶¶ 6.4-6.5, U.N. Doc. CCPR/C/82/D/903/1999 (2004).

[121] Id.

[122] Interview with anonymous legal NGO, in [redacted] (Feb. 2021) (notes on file with author).

[123] Supra note 118.

[124] Supra note 120.

[125] ICCPR, art. 14; Cambodia Const., art. 41.

[126] See Kim v. Republic of Korea, Human Rights Comm. Decision, No. 574/1994, ¶ 12.2, U.N. Doc. CCPR/C/64/D/574/1994 (1999); HRC GC 34, ¶¶ 22, 34.

[127] United Nations Human Rights System, Global Freedom of Expression: Columbia University, https://globalfreedomofexpression.columbia.edu/law-standards/united-nations-human-rights-system/(last visited May 23, 2021).

[128] HRC GC 34, ¶ 25.

[129]] Supra note 12.

[130] See Cambodia’s Government Should Stop Silencing Journalists, Media Outlets, Human Rights Watch (Nov. 2, 2020.)

[131] David Kaye (Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression), Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, ¶ 6, U.N. Doc. A/74/486 (Oct. 9, 2019).

[132] Supra note 48.

[133] HRC GC 34, ¶ 33

[134] Id.

[135] Supra note 48.

[136] Human Rights Comm., General Comment 10, Article 19 (Freedom of opinion), adopted June 29, 1983, U.N. Doc. 29/06/1983, ¶ 2.

[137] UN HRC: Artistic expression must be protected, Article 19 (Sept 18, 2015), https://www.article19.org/resources/un-hrc-artistic-expression-must-be-protected/

[138] Id.

[139] Supra note 111.