Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Cambodia (Ratification: 1999)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) dated 24 August 2010, concerning acts of violence and harassment against trade union leaders and members as well as other violations of the Convention. The Committee notes, in particular, the information provided by the ITUC regarding the absence of a labour court, the overall deficiency of the judicial system in respect of the murders of trade unionists Chea Vichea and Ros Sovannareth and the persistent climate of repression towards trade union activities.

The Committee further notes the comments made by the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) dated 31 August 2010, indicating that independent trade unions remain fragile, under-resourced and operating in an extremely difficult context; that the FTUWKC struggles to be recognized by the Government as a valid stakeholder in the policy-making process; and that there has been no let up in anti-union harassment, intimidation and dismissal of union members, who continue to face police violence, attacks, weak law enforcement and employer impunity. The Committee also notes that the FTUWKC indicates that the 2009 Law on Peaceful Demonstrations severely impacts on the organization of strikes, rallies and other union activities and that the 2009 Penal Code, by retaining defamation and disinformation as criminal offences, potentially affects trade union activities. The Committee urges the Government to send its observations on all the issues raised by the ITUC and the FTUWKC in its next report.

In addition, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association concerning the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy and the continuing repression of unionists (Case No. 2318) as well as the denial of the right to form trade unions of public employees (Case No. 2222).

As regards the impunity prevailing in the murder of the abovementioned trade unionists, the Committee recalls that two individuals were convicted for the murder of Chea Vichea (Sok Sam Oeun and Born Samnang) and Thach Saveth was convicted of the murder of Ros Sovannareth in trials that were fraught with judicial irregularities and an absence of due process. Despite international calls for full, independent and impartial investigations since the moment of these murders, as well as that of Hy Vuthy, the Government has failed to provide any information on the steps taken in this regard or to provide any independent report. While noting that the convictions of Sok Sam Oeun and Born Samnang were remanded to the Appeal Court by the Supreme Court and that they have now been released on bail, the Government has yet to provide any information on the investigations to be carried out to determine the actual murderers and instigators of the assassination of Chea Vichea. Moreover, Thach Saveth has been awaiting a review of his conviction by the Supreme Court for several years now. No information has been provided on the progress made of investigations into the murder of Hy Vuthy.

Finally, the Committee takes note of the discussions on Cambodia in the Conference Committee on the Application of Standards (June 2010). It notes in particular that the Conference Committee regretted the lack of information relating to the long-awaited independent investigations into these murders. The Conference Committee recalled that freedom of association rights of workers and employers can only be exercised in a climate free from violence, pressure and threats and urged the Government to ensure respect for this fundamental principle and bring an end to impunity by taking the necessary steps, as a matter of urgency, to ensure full and impartial investigations into the murders of these trade union leaders and to bring, not only the perpetrators, but also the instigators of these heinous crimes to justice. Moreover, noting the serious flaws observed in the judicial process, as already observed by the Supreme Court, the Conference Committee indicated that it expected that the criminal charges against those earlier convicted for these murders would be immediately dropped and that the Supreme Court would rapidly review the appeal by Thach Saveth and ensure his release.

Trade union rights and civil liberties. In its previous observation, the Committee urged the Government to take all the necessary measures to ensure that the trade union rights of workers were fully respected and that trade unionists were able to engage in their activities in a climate free of intimidation and risk. The Committee takes note of the comments made by the ITUC as well as of the discussion during the Conference Committee, regarding the persistent climate of violence and intimidation towards union members. The Committee recalls, once again, that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against leaders and members of workers’ organizations and that detention of trade unionists for reasons connected with their activities in defence of the interests of workers, constitutes a serious interference with civil liberties in general and with trade union rights in particular. The Committee further recalls that workers have the right to participate in peaceful demonstrations to defend their occupational interests. In light of the above, the Committee once again urges the Government to take all the necessary measures, in the very near future, to ensure that trade union rights of workers are fully respected and that trade unionists are able to engage in their activities in a climate free of intimidation and risk to their personal security and their lives, in accordance with the abovementioned principles.

As regards the murders of trade unionists Chea Vichea, Ros Sovannareth and Hy Vuthy, in its previous observation the Committee requested the Government, to take concrete and tangible steps, as a matter of urgency, to carry out independent inquiries and to facilitate an expedited review of the convictions of Born Samnang and Sok Sam Oeun for the murder of Chea Vichea as well as of the conviction of Thach Saveth for the murder of Ros Sovannareth, and to take steps for their release pending the outcome of the above independent inquiries. The Committee notes that the Government indicated during the discussions in the Conference Committee that Born Samnang and Sok Sam Oeun had been released on bail, pending the re-hearing of their case by the Appeal Court, after the Supreme Court found inadequacies in the criminal procedure. The Government adds in its report that it had not received information on the prospective date of the re-hearing. The Committee notes that the FTUWKC indicates that, while on 17 August 2009, the Appeal Court ordered Chea Vichea’s case to be reopened for further investigation, no subsequent inquiries were carried out. The Committee notes with concern that the Government does not provide any information in its report on any progress made with regard to the investigations into these three murders. The Committee therefore once again urges the Government to bring an end to impunity by taking the necessary steps, as a matter of urgency, to ensure full and impartial investigations into the murders of the abovementioned trade union leaders and to bring, not only the perpetrators, but also the instigators of these heinous crimes to justice. In particular, the Committee urges the Government to provide, with its next report, precise and detailed information on:

(i)    the steps taken to exonerate Born Samnang and Sok Sam Oeun of all charges brought against them and to return the bail paid, as well as to reopen a full investigation into the murder of Chea Vichea as requested by the Supreme Court;

(ii)   the awaited review by the Supreme Court of the decision of the Appeal Court regarding the conviction of Thach Saveth for the murder of Ros Sovannareth, and the opening of an investigation into that crime; and

(iii)  the outcome of the investigation into the murder of Hy Vuthy.

Independence of the judiciary. In its previous observation, the Committee, noting the conclusions of the ILO direct contacts mission of April 2008, referring to serious problems of capacity and lack of independence of the judiciary, requested the Government to take concrete and tangible steps, as a matter of urgency, to ensure the independence and effectiveness of the judicial system, including capacity-building measures and the institution of safeguards against corruption. In this regard, the Committee notes the report of the UN Special Rapporteur on the situation of human rights in Cambodia of 16 September 2010, which recommends various steps to enhance the independence of the judiciary and, in particular, the adoption without delay of the Law on the Status of Judges and Prosecutors and the Law on the Organization and Functioning of the Courts. The Committee requests the Government to provide, with its next report, information on the measures taken or contemplated to ensure the independence and effectiveness of the judicial system, in particular as regards the adoption of the Law on the Status of Judges and Prosecutors and the Law on the Organization and Functioning of the Courts, together with a copy of the relevant legislations.

Rule of law and legislative developments. Finally, the Committee notes that the Government recalled during the discussions in the Conference Committee that: (i) it was considering the creation of a labour court in accordance with international standards; and (ii) the draft Trade Union Law on which it is working in cooperation with the ILO will be adopted by Parliament in 2011 and it expects the law to guarantee the right of workers and employers to organize and bargain collectively. The Government adds in its report that the Working Group of the Ministry of Labour and Vocational Training has finished its review of the draft Trade Union Law consisting of 17 chapters (90 articles), that the draft has now been sent to the ILO for review, that it will then be brought to consult with workers’ and employers’ associations separately and that it will then be put in the open multi-party meeting (gathering representatives of Government’s institutions, trade unions, employer associations and international organizations, including the ILO and the International Finance Corporation (World Bank Group)). The Committee requests the Government to provide, with its next report, information on the creation of the labour court and the adoption of the Trade Union Law, as well as on the consultation processes held in that respect.

Recalling its request to the Government to make every effort to take the necessary action to bring its legislation into conformity with the Convention, the Committee reminds the Government that, if it so wishes, it may have recourse to the technical assistance of the Office.

The Committee is raising other points in a request addressed directly to the Government.