Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Abolition of Forced Labour Convention, 1957 (No. 105) - Cambodia (Ratification: 1999)

Article 1(a) of the Convention. Sanctions involving the obligation to work as a punishment for the expression of political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted that, according to section 41 of the Law on Political Parties of 1997, various offences related to the administration or management of a political party which has been dissolved, or whose activities have been suspended by a court, or whose registration has been refused, are punishable with sanctions of imprisonment for a term of up to one year, which involves compulsory labour pursuant to section 68 of the Law on Prisons of 2011. The Committee also noted that, pursuant to the Penal Code of 2009, the offences of public defamation and insult (sections 305–309) are punishable with fines only. The Committee further noted the adoption of the Law on Peaceful Demonstrations of 2009 and the arrest of seven opposition members of Parliament in July 2014 during protests against the ban on demonstrations imposed by the Government in January 2014 after the number of protests in the country escalated in late 2013.

The Committee notes the Government’s information in its report that no political party has been dissolved by a court decision under the Law on Political Parties of 2007. The Government also indicates that a demonstration may not be carried out in the event that it endangers or may adversely affect the public order, safety and security. Moreover, perpetrators of the criminal offence of riots or leading of riots were arrested in accordance with the Penal Code.

The Committee also notes that the Law on Political Parties of 2007 was amended in 2017, pursuant to which section 42 of the amended version retains the provisions of section 41 of the previous version. Moreover, several sections under the Penal Code of 2009 providing for a penalty of imprisonment may still be used in situations covered by Article 1(a) of the Convention, including sections 494 and 495 on incitement to disturb public security by speech, writing, picture or any audio-visual communication in public or to the public; section 522 on publication of commentaries intended to unlawfully coerce judicial authorities; and section 523 on discrediting judicial decisions. The Committee further notes the adoption of the Law on Associations and Non-Governmental Organizations in 2015 and the adoption of the Law on Trade Unions in 2016. Additionally, the legislation on cybercrime is currently being drafted.

The Committee notes that, according to the Report of the UN Special Rapporteur on the situation of human rights in Cambodia of 5 September 2016, in the case of many laws, the degree of their compliance with international human rights laws lies in the interpretation and application of the law by law enforcement and judicial officials (A/HRC/33/62, paragraph 29). In her report of 27 July 2017, the Special Rapporteur expressed her concern at the raft of laws (on associations and NGOs, on the election of members of the National Assembly, on trade unions and on peaceful demonstrations) that can be used to restrict freedom of assembly and association and freedom of expression (A/HRC/36/61, paragraph 47).

The Committee also notes that, the report of the Special Rapporteur of 2017 indicates that several senior member of the Cambodia National Rescue Party (CNRP), the largest opposition party, have been the subject of convictions and sentences (paragraph 6). Senator Hong Sok Hour was sentenced to seven years’ imprisonment on 9 November 2016 for forgery and incitement in connection with a Facebook post. Senator Thak Lany, who is currently in exile, was convicted in absentia to 18 months’ imprisonment on charges of defamation and incitement in connection with a video clip on Facebook purportedly of a speech with comments on the death of a political activist, Kem Ley (paragraph 7). Moreover, the High Commissioner for Human Rights of the United Nations expressed his serious concern in a statement of 4 September 2017 at the arrest of Kem Sokha, the current president of CNRP. Kem Sokha is accused of treason and faces a prison term of between 15 and 30 years if convicted, based on a video of a speech he made in 2013, which has been publicly available since then.

The Committee further notes that, according to the report of the Special Rapporteur of 2017, many NGO representatives, trade union members and human rights defenders are still subjected to threats, harassment, arrest, pre-trial detention and prosecution (paragraph 45). Notably, in 2016, five members of the Cambodian Human Rights and Development Association (CHRDA) were arrested and kept in pre-trial detention for over a year. They were released under judicial supervision in June 2017, while the trial dates are still pending (paragraphs 21 and 22). Moreover, a number of protesters related to the “black Monday” campaign against the arrest of these staff of the CHRDA were arrested and prosecuted for defamation, public insult and various public order offences under the Penal Code. Among others, Tep Vanny was prosecuted following her participation in a black Monday event on 15 August 2016. She was then charged with “intentional violence with aggravating circumstances” relating to another protest in 2013, and sentenced to two and a half years’ imprisonment on 23 February 2017 (paragraph 45). Moreover, an independent political analyst, Kim Sok, has been in pre-trial detention since 17 February 2017 on defamation and incitement charges for publically expressing his opinion that the ruling party was responsible for the killing of Kem Ley (paragraph 48).

The Committee notes that although the offences of public defamation and insult are punishable with fines only under the Penal Code of 2009, those provisions have been applied to the various persons mentioned above to punish them with penalties of imprisonment. The Committee is bound to express its deep concern over the detentions of, and prosecutions against members of the opposition party, NGO representatives, trade union members and human rights defenders and recalls that restriction on fundamental rights and liberties, including freedom of expression, may have a bearing on the application of the Convention if such restrictions are enforced by sanctions involving compulsory labour. The Committee draws the Government’s attention to the fact that legal guarantees of the rights to freedom of thought and expression, freedom of peaceful assembly, freedom of association, as well as freedom from arbitrary arrest, constitute an important safeguard against the imposition of compulsory labour as a punishment for holding or expressing political or ideological views, or as a means of political coercion or education (see General Survey on the fundamental Conventions, 2012, paragraph 302). The Committee therefore urges the Government to take immediate measures to ensure that no penalties involving compulsory labour may be imposed for the peaceful expression of political views or views opposed to the established system, both in law and in practice. In this regard, the Committee requests the Government to ensure that section 42 of the Law on Political Parties as amended in 2017, as well as sections 494, 495, 522 and 523 of the Penal Code of 2009 are amended, by clearly restricting the scope of these provisions to situations connected with the use of violence or incitement to violence, or by repealing sanctions involving compulsory labour. It also requests the Government to take the necessary measures to ensure that the application of the Penal Code, the Law on Trade Unions, the Law on Associations and Non governmental Organizations and the Law on Peaceful Demonstration in practice does not lead to punishment involving compulsory labour in situations covered by Article 1(a) of the Convention. Lastly, the Committee requests the Government to provide a copy of the legislation on cybercrimes, once adopted.

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

[The Government is asked to supply full particulars to the Conference at its 107th Session and to reply in full to the present comments in 2018.]