Defendants Not Informed of Rights in Cambodian Appeal Court Cases: Study

Judges in Cambodia’s Court of Appeal fail to inform defendants of their rights and a high number of hearings do not even have the defendants or their lawyers present, according to a study by a local rights group.

In addition, the quality of evidence presented at the hearing is very poor and threatens the right to be convicted beyond reasonable doubt, and shows that judgments are, in the majority of cases, not based on law or evidence, the Phnom Penh-based Cambodian Center for Human Rights (CCHR) said in its study of more than 200 cases.

The findings point to additional concerns in Cambodia’s judiciary, whose functioning has already “been among the major human rights concerns in Cambodia for some time,” the CCHR said in a report.

“Although there have been steady improvements in the adherence to some of the procedures that underpin fair trial rights within the Cambodian judiciary, many areas of concern remain,” it said.

“While the Court of Appeal is generally adhering to the procedures that are meant to ensure fair trial rights, the concerns lie in the more substantive issues.”

“Judgments are, in the majority of cases, not based on law or evidence,” CCHR said.

Witnesses absent

For its report, “Fair Trial Rights in Cambodia: Monitoring at the Court of Appeal,” CCHR monitored 204 trials held between March 1, 2013, and Jan. 31, 2014, noting that in most cases no witnesses had appeared in the proceedings before the court, CCHR’s Trial Monitoring Project Coordinator Piseth Duch told RFA’s Khmer Service.

“Witnesses were present in only a few cases,” Piseth Duch said.

“The court needs to collect more evidence [in these cases] and to summon witnesses in order to provide justice for both sides,” he said.

“Presiding judges also didn’t read out or clarify the defendants’ rights or explain that they had a right to have a lawyer present or a right to keep silent,” Piseth Duch said, adding that defendants themselves sometimes missed their own appeal proceedings because their prison could not get get them to the court.

“In at least 12 cases out of the 204, convicts and lawyers were both absent,” Piseth Duch said.

An additional concern was the court’s handling of cases involving juveniles, with minors “rarely released on bail,” Piseth Duch said.

During the reporting period, eight cases involving juveniles were reviewed, with six aged between 16 and 17 at the time of their offense and one under 14 years of age, CCHR said in its report.

Following their appeal, judges imposed custodial sentences in five of those cases, CCHR said, adding that in only two cases were the defendants acquitted, and that in a third the defendant’s original sentence was shortened and suspended.

“These figures are of serious concern and at great odds with both international and domestic law, which stipulate that custody in the case of juvenile offenders must only ever be used as a last resort,” CCHR said.

'Proper and timely'

The report called on the government to enhance the capacity of the Court of Appeal to avoid backlogs and delays, and manage new cases “in a proper and timely manner.”

It also called on the Constitutional Council, the nation’s highest court, to send back to parliament a set of judicial laws passed recently that rights groups say will give Prime Minister Hun Sen’s government effective control over the judiciary and further undermine the independence of courts.

Lawmakers should amend the Law on the Organization and Functioning of the Courts, the Law on the Organization and Functioning the Supreme Council of Magistracy, and the Law on Statute of Judges and Prosecutor “in order to ensure they comply with the Constitution of the Kingdom of Cambodia and international human rights law in upholding the principle of the independence of the judiciary,” the report said.

All members of the ruling Cambodian People’s Party (CPP) in the National Assembly agreed to adopt the laws, which in effect put the minister of justice at the center of all key decision-making by the judiciary and by the Supreme Council of the Magistracy (SCM), the body charged with appointing, disciplining, and overseeing the country’s judicial system.

Broken promises

Though the Cambodian government has made promises to the Cambodian people and international donors to establish an independent judiciary, “it has utterly failed to keep them,” Brad Adams, Asia director for the New York-based Human Rights Watch (HRW), said in a statement released before the parliament vote last month.

“By enacting laws empowering the justice minister over the judiciary’s ruling body, Hun Sen can formalize his de facto power over the courts. If these laws pass, it is farewell to any hopes of judicial reform,” Adams said.

The government of the ruling Cambodian People’s Party (CPP) has for more than two decades used its control of Cambodia’s courts as a tool for political purposes, HRW said in a statement last month.

“The courts are notoriously corrupt, lack competence, and have frequently tried and sentenced activists, journalists, and political opponents after unfair trials, which has been criticized by Cambodian lawyers, United Nations human rights experts, local and international organizations, and foreign donors,” HRW said.

Passport cost cut after crisis

After the rush of Cambodian migrant workers swelling over the border appeared to finally be subsiding last week, officials said the number started to spike again yesterday, attributing the rise to the announcement of $4 passports.

On Friday, Prime Minister Hun Sen signed a subdecree that will see the normal fee of $124 for passports reduced to just $4 for students and migrant workers.

The same day, the number of workers crossing back into Cambodia via the Poipet International Checkpoint declined to 2,421 – towards the lower end of the scale since the mass exodus of workers fleeing Thailand began two weeks ago, but still vastly higher than the 100-person norm before the crisis.

But on Saturday and Sunday, an increasing number of migrants poured into the small checkpoint again.

“I think they heard about the passport prakas,” Banteay Meanchey governor Korsum Saroeurt said. “Many people are saying that they want to come back, get their passport and visa, and return to their jobs in Thailand.”

More than 220,000 mostly undocumented Cambodian workers have come back from Thailand so far, most fleeing fears of an imminent junta-led crackdown. They left behind jobs mainly in construction and agriculture that paid twice as much as in Cambodia.

“Cheaper passports are good but won’t end the problems. The workers will still be exploited,” said Kem Ley, an independent political analyst. “[The government] reduced the cost of the passport, but they didn’t raise the wages of the civil servants responsible for processing the passport or patrolling the border.”

Last week, passport troubles led to 13 migrant workers who were trying to come back to Cambodia going to prison in Thailand instead.

“They were cheated by their ringleader,” said Moeung Mony, an official at the Cambodian-Thai border relations office in Poipet. He added that the workers were not aware that their visas were fake.

The workers are in detention in Thailand awaiting legal assistance from Cambodia, according to Neth Sary, Cambodian consul general in Thailand’s Sa Kaeo province.

On Friday, NGOs ADHOC and Human Rights Watch both urged the junta to improve treatment of migrant workers.

Trafficking efforts lamented

For the second year in a row, Cambodia has prosecuted fewer cases of human trafficking than the previous 12 months, according to the US State Department’s annual "Trafficking in Persons Report" for 2014.

Cambodia’s government also identified fewer victims of trafficking and failed to investigate, prosecute or convict a single official complicit in it, the report says.

These factors contributed to the Kingdom being given an unfavourable “Tier 2 Watch List” ranking, a status indicating an insufficient amount of effort to combat pervasive human trafficking.

“Endemic corruption at all levels of the Cambodian government continues to severely limit the ability of individual officials to make progress in holding traffickers accountable,” reads the State Department report, released late on Friday. “Cambodia’s anti-trafficking efforts are sliding backwards and downwards– that’s the core message of this report from Washington,” Phil Robertson, deputy Asia director for Human Rights Watch, said.

In a case the Post reported last month, the neighbour of 14-yearold Sana* promised her $50 a day for a job dealing cards across the border in Thailand. Her desperately poor family agreed, but Sana never saw the inside of a casino. Instead, she claims she was locked in a room with a man who raped her multiple times, having paid $1,000 for her virginity.

According to the State Department’s report, too many officials in Cambodia turn the other way to such abuse. These officials line their pockets while children’s virginity is sold in massage parlours, women are kidnapped from rural areas and forced into prostitution, and men are tricked by brokers into debt bondage slavery on fishing vessels in Thailand.

Last year, Cambodia rejected the State Department’s findings, issuing its own summary of efforts to crack down on traffickers.

In response to this year’s report, the government is just glad the situation isn’t bleaker.

“It’s an improvement that we haven’t gotten worse,” government spokesman Phay Siphan said.

The report, however, notes that Cambodia has, in some regards, gotten worse: officials prosecuted just 50 trafficking cases this year, down from 102 tallied in 2012.

But anti-trafficking advocates weren’t so quick to condemn Cambodia’s efforts across the board. According to reports from rights group International Justice Mission, trafficking and sexual exploitation crimes have largely been removed from the open, due in part to better law enforcement.

“It is much more difficult to find young minors for sex, and the deterrence effect is high amongst the criminal population, which partially explains the decrease in sex-trafficking convictions,” IJM field office director Christa Hayden said.

Cambodia is still one of the last countries in the world to not have legalised undercover investigations of human trafficking, making it even more difficult to trace the increasingly covert trafficking networks. While authorities still conduct undercover stings, they have done so infrequently since 2010, when changes to the penal code left undercover investigative techniques on tenuous legal footing.

The Ministry of Justice is working to finalise guidelines on undercover investigative authority and training for anti-trafficking police this year.

“Just because trafficking isn’t quite as obvious and out in the open doesn’t mean it isn’t happening behind closed doors,” said Ros Sopheap, executive director of Gender and Development in Cambodia.

“What if authorities use tactics to trick women or children into worse situations? Who will hold the authorities accountable?” Sopheap said.

These kind of endemic corruption and accountability fears are far from ungrounded.

The trafficking report points to the December 2011 sentencing of Eam Rattana, the former Phnom Penh Anti-Human Trafficking and Juvenile Protection chief who was sentenced in absentia for his own complicity in an illegal prostitution ring.

And the power politics involved in trafficking don’t end at the borders.

In a speech on Saturday, Thailand’s General Prayuth Chan-ocha blamed traffickers and brokers for spreading rumours that prompted a mass exodus of Cambodian workers from Thailand.

His promise to crack down on traffickers by regulating the foreign workforce came just hours after the State Department downgraded Thailand to the worst ranking given on the human-trafficking list, largely for failing to stop the slew of Cambodian and Burmese men forced into slavery on Thai fishing boats.

While the latest assessment of trafficking by the State Department did not take into account the recent border crisis, analysts said the hundreds of thousands of Cambodian migrants fleeing from Thailand this month now face even greater vulnerabilities to exploitation and abuse.

“There’s no work for them in Cambodia, but they’ll have to make a living, so they’ll be tempted to go back to earning more money in Thailand, especially with the government’s announcement [on Friday] of the $4 passport,” migration expert Andy Hall said.

“Smugglers and brokers very much want people to go round and round in circles, but each time the workers go across the border, it increases their debt bondage until they are like slaves, controlled by the brokers and traffickers.”

Hall added that the legal channels are no better, with high recruitment agency fees forcing workers to borrow money, leading to a situation of debt bondage in which their passports and documents are withheld to prevent escape from forced labour, often at no pay.

“All of this could be solved with long-term migration policy and enforcement of the rule of law,” Hall said.

Specifics aren’t available for the number of trafficking victims returned to Cambodia during the ongoing exodus, but with relevant impunity allowing traffickers free reign, estimates are high, according to Moeun Tola, head of the labour program at the Community Legal Education Center.

“The prosecution is only for the small fish. But the big fish have ties with high-ranking officials, and the system is profitable, so it just keeps going,” Tola said.

Int’l friends oppose China’s provocation in East Sea

Converging on the Helvetiaplatz where demonstrations take place, a representative from the Switzerland-Vietnam Friendship Organisation, emphasised that Vietnam’s stance towards the peaceful settlement of the territorial dispute with China  has received mass support from  around the globe, while China is condemned for its unilaterally illegal acts.

He highlighted that China’s deployment of Haiyang Shiyou-981 and land reclamation for other constructions in the East Sea seriously violates Vietnam’s sovereignty, sovereign rights and jurisdiction, the 2002 ASEAN-China Declaration on the Conduct of Parties in the East Sea (DOC), and the 1982 United Nations Convention on the Law of the Sea (UNCLOS). It gravely threatens peace and stability in the region and wider world, creating a dangerous precedent of behavior among nations.

Philippe Schneider, head of the Ministry of Defence’s projects, said China, one of the five members of the United Nations Security Council (UNSC), must take responsibility for keeping international peace and security. However, the recent happenings in the East Sea show China has failed to meet its international commitment.

Like other countries in the world, Vietnam desires peace and opposes the use of force and threat to use force to infringe upon a country’s sovereignty.

Friendship Associations with Vietnam in Germany, Denmark, France, Galicia in Portugal, Italy and Switzerland issued statements, requesting China to withdraw its drilling oil rig out of Vietnam’s waters.

Deploying more oil rigs, China turns East Sea into its pond, int'l scholars

On June 21, 2014 the delegates who attended the International Workshop under the theme "Paracel and Spratly Archipelagos: Historical Truths" held in Da Nang inspect the fishing boat ĐNa 90152 which was slammed and sunk by China’s vessels. This sunken boat was lifted from the water and pulled ashore. In the photo: The delegates see with their eyes a large hole in the side of the boat. Photo: VNA 

Prof. Nguyen Quang Ngoc, deputy chairman of the Vietnam Historical Sciences Association:

The deployment of additional oil rigs in the East Sea shows that China will seek ways to realize its U-shaped claims.

It will not deploy just one oil rig but many other oil rigs, more airports and will occupy more areas to gradually turn the East Sea into a pond of their own.

China's strategy has always been to move backward to go forward and going forward is to occupy the entire East Sea. Its plot to monopolize the East Sea is very clear.

Mr. Leszek Buszynski, from the National Security College, Australian National University:

It is likely that after 15/8 when China withdrasw the HD-981 oil rig, the rig will be replaced by another one.

Of course the international community will condemn them, warning that China's national reputation will be damaged, but it is possible that China will continue to bully Vietnam.

Advisor for strategic issues of the Southeast Asia Research Group, Subhash Kapila:

The new move of sending new oil rigs to the East Sea shows that China has embarked on a new strategy of "mobile sovereignty".

They hope that by bringing in more oil rigs, they will reinforce their claims of sovereignty over the Paracel Islands.

Mr. Gerhard Will, expert of Southeast Asia and Asia of the German Institute for International and Security Affairs - SWP:

This is a move to increase tension, contrary to the long-term economic interests of the East Sea that the Chinese claimed.

The information about deploying additional drilling rigs in the East Sea, published in Chinese newspapers, can target to to the Chinese public, through which the Chinese government shows the Chinese people that "they have done something."

China does not have a clear and convincing strategy on the conduct in the East Sea. It is also difficult to reach compromise or consensus on this issue in the context of the nationalism is so high among the Chinese people.

Prof. Renato de Castro of the De la Salle University, the Philippines:

If the first oil rig is targeted directly to Vietnam, the next oil rig is likely to be aimed directly at the Philippines.

They will push Vietnam and the Philippines to be in the same boat. It is possible that this is China's reaction before Vietnam and the Philippines "playing volleyball together" on one of the islands in the Spratly recently.

Professor Eric Franckx from Université Libre de Bruxelles, Belgium

If the oil rigs are deployed to different areas of the East Sea, the countries concerned will be definitely uncomfortable.

So I think the Chinese are raising difficulties for themselves when they make such moves. Such workshops will be held in Malaysia and the Philippines if the oil rigs are pulled close to their waters. I believe that in those countries, the people will be very angry - Thuy Chung

China sends four oil rigs to East Sea 

According to Reuters, China has sent four oil rigs into the East Sea in a sign that Beijing is stepping up its exploration for oil and gas in the tense region, less than two months after it positioned a giant drilling platform in Vietnam's waters.

Coordinates posted on the website of China's Maritime Safety Administration showed the Nanhai number 2 and 5 rigs had been deployed roughly between southern China and the Pratas islands, which are occupied by Taiwan. The Nanhai 4 rig was towed close to the Chinese coast.

The agency did not say who owns the rigs.

Earlier this week, it gave coordinates for a fourth rig, the Nanhai 9, which it said would be positioned just outside Vietnam's exclusive economic zone by Friday.

The Global Times, a popular tabloid published by the Communist Party's official People's Daily, quoted Zhuang Guotu, director of the Center for Southeast Asian Studies at Xiamen University, as calling the rig deployment a "strategic move".

"The increase in oil rigs will inevitably jab a sensitive nerve for Vietnam and the Philippines," Zhuang said.

China's state oil behemoth CNOOC Ltd has said it had four new projects scheduled to come on stream in the western and eastern South China Sea in the second half of 2014.

It was unclear if the four rigs were part of those projects. A CNOOC spokesman declined to comment, but the company has long said that in a bid to boost production it wanted to explore in deeper waters off China.

CNOOC has said it would increase by up to a third its annual capital spending for 2014 to almost $20 billion. Reuters

Scholars suggest ways to counter China’s actions

As China has not put forth any persuasive evidence proving sovereignty over the two groups of islands [Spratly and Paracel], Vietnam should use all legal maneuvers available to demonstrate to the world that justice is on their side.

International scholars, including those from the US, France, Belgium, and Australia, made the suggestions at an international conference in Danang city on June 20-21.

Their presentations made it clear that the Vietnamese state has established and exercised its sovereignty over the Hoang Sa (Paracel) and Truong Sa (Spratly) archipelagos peacefully and constantly and in line with international law for centuries.

They once again criticized China’s nine-dash line claim that covers more than 80% of the East Sea’s area, affecting the interests of many coastal countries in the region.

General Daniel Schaeffer, former French military attaché to China, Thailand and Vietnam, said China’s East Sea claim is invalid without convincing explanation.

Defying international law, China has over past years sought to realize its groundless claim by infringing upon sovereignty of the Philippines, Vietnam and Malaysia.

The ‘nine-dash line’ claim is no longer just a matter of particular concern of only one country in the region, but now is of utmost concern to the international community. An international consensus should be reached to ask China to abolish its claim.

Professor Jerome Cohen from New York University’s School of Law recommended that like the Philippines, Vietnam should sue China into the International Tribunal for the Law of the Sea, because the nine-dash line runs counter to the 1982 UN Convention on the Law of the Sea (UNCLOS).

Vietnam can also team up with the Philippines or it can unilaterally sue China in an international arbitration court in accordance with the 1982 UNCLOS, to which China is a signatory.

Professor Eric Franckx from Université Libre de Bruxelles, Belgium, said the 1982 UNCLOS is very important because it takes priority and governs the settlement of sea disputes.

The convention was signed by many countries, including China that agreed to settle sea disputes through the UNCLOS.  This means Vietnam can unilaterally bring China in an international court.

Professor Carlyle A. Thayer from the University of New South Wales in Australia suggested that Vietnam submit a proposal to the UN Security Council, asking for a debate on China’s illegal oil rig placement in the East Sea and its impact on regional security.

As a world power, China may use its veto power to reject any UNSC resolution, but at least the international community will better understand Vietnam’s goodwill and China’s actions, asking China to withdraw its platform from Vietnam’s waters.

Scholar even affirmed that it is unacceptable if any party uses force to change the status quo, destabilize the region and violate sovereignty of another nation, in its attempt to take control of the East Sea. 

Macau busts $645 million World Cup betting ring

Police have smashed an illegal betting syndicate in Macau for allegedly taking the equivalent of US$645 million in bets on World Cup matches.It's believed to be the biggest ever raid on an illicit football bookmaking racket in the Asian casino capital, according to police.The gambling ring used three hotel rooms to take internet and phone bets from around the world, a first coordinator for the Macau Judiciary Police told CNN. One gambler placed a bet valued at around US$5 million, initial investigations found.

Police arrested some 22 people from mainland China, Hong Kong and Malaysia in the raid on Thursday. Two of the suspects, from China and Malaysia, were believed to be the ringleaders of the syndicate.

Officers seized cash worth around US$248,000, along with 17 computers, at least 10 cell phones, and betting slips.

A second gambling syndicate was busted in the same hotel hours later, with police arresting four Chinese men early Friday morning. According to police, the second betting ring took around US$645,000 in illegal bets on World Cup matches in a single day.Police have not released the name of the hotel.

READ: The dark side of Asia's gambling MeccaThe arrests are part of a cross-border campaign to crack down on illegal betting in Macau, Hong Kong and China's southern Guangdong province around the World Cup. Authorities from the Pearl River Delta region are also cooperating with Interpol and seven other Asian nations to tackle illicit gambling.

More than half of the world's illegal sports bets are placed in Asia, according to a recent study by the International Center for Sport Security and Paris Sorbonne University.Since the tournament began, Hong Kong police have arrested a total of 39 suspects over illegal gambling and seized betting slips worth around US$10 million, according to the South China Morning Post.The city's legal gambling authority, the Hong Kong Jockey Club, is the second biggest betting operator worldwide. The club said illicit sports betting in Hong Kong generated an estimated HK$500 billion (US$64.5 billion) last year -- almost four times the amount the Jockey Club turned over in the same period.In Singapore, 15 people have been arrested for allegedly receiving illegal football bets equivalent to US$640,000 in the past two weeks, police said Monday.