Individual Case (CAS) - Discussion: 2018, Publication: 107th ILC session (2018)

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



A Government representative stated that the Committee of Experts had played a crucial role in ensuring the fulfilment of all international labour Conventions, as well as other relevant international human rights instruments. The Government of Cambodia had also been committed to do its utmost to respect all its international obligations. As enshrined in the Constitution, both labour rights and human rights were protected in law and in practice in Cambodia. Forced labour was explicitly prohibited under section 15 of the Labour Law. Referring to the definition of forced labour under the Forced Labour Convention, 1930 (No. 29), as well as to its exceptions, the speaker highlighted that the Law on Prisons aimed at providing education, reformation and rehabilitation to prisoners to reintegrate them into society, to prevent the recurrence of offences and to offer safe and secure custody, good health and humane treatment of prisoners in accordance with international principles and the United Nations Rules for the Protection of Juveniles Deprived of Liberty. Section 68 of the Law on Prisons incorporated all international standards and best practices applied in some developed countries on the use of the prison industry. Therefore, it was inappropriate to interpret that provision to be in violation of Conventions Nos 29 and 105. Section 68 provided that low-risk prisoners who had been assessed as physically capable should be assigned to work as part of the prison’s daily routine, or to perform any work in the public interest and for the benefit of the community, or assigned to participate in the prison industry, prison handicraft and prison farming programmes. The speaker expressed his grave concern at the Committee of Experts’ comments and conclusions on the application of Convention No 105. Regarding the request for updated information concerning the situation of freedom of association in Cambodia and the roadmap to deal with this issue, the speaker provided assurances that such information would be provided. He stressed that, as the national elections were forthcoming, the situation was heavily politicized. Moreover, some non-governmental organizations (NGOs) and civil society had no hesitation to discredit, demonize and ultimately to destroy the Royal Government of Cambodia and the ruling party whose achievements unquestionably satisfied all Cambodian people.

The Employer members pointed out that the application of Convention No. 105 by Cambodia was being discussed by this Committee for the first time. There were only two relevant observations made by the Committee of Experts in respect of Cambodia’s compliance with the Convention, one in 2015 and the other in 2017. The observations referred to the inconsistent application of the Penal Code of 2009 and reported instances of political figures and trade unionists held in custody for offences for which the Code mandated only a fine. No mention of any person subjected to conditions of forced labour while in detention was made. For a breach of the Convention to occur, however, it was necessary to point to instances of persons being subjected to banned activities. In the absence of such evidence clearly pointing to a breach of the Convention, a case should not be discussed by the Committee, nor be double-footnoted. It was not sufficient to assume that detention in itself connoted forced labour. The fact that detention may or may not have been legal was not material to the question of whether the Convention had been breached. The observations that formed the background to this case drew heavily on the 2014, 2016 and 2017 reports of the UN Special Rapporteur on the situation of human rights in Cambodia. These reports drew attention to, and expressed deep concern about, human rights issues in Cambodia. These issues were of concern to all and the Employer members were conscious of the strategic regional and global concerns and calls for pressure to be brought to bear on Cambodia in this respect. However, this Committee should not permit itself to be used as a vehicle of wider concerns, be they in respect of Cambodia or in any other situation. The mandate and the duty of the Committee was to examine cases of breaches of ratified Conventions, not to pursue issues more properly dealt with in other jurisdictions. Thus, the conclusions on this case should be limited to observing that the inconsistent application by Cambodia of the Penal Code created risks that a detained person may be subjected to pressures involving forms of forced labour. In the absence of evidence pointing to such instances, this Committee should limit itself to asking the Government for an assurance that no persons, detained or not, were or would be subjected to conditions of forced labour. That was the approach adopted by the Committee of Experts in its 2015 observation when it had requested the Government to take the necessary measures to ensure that no sanctions involving compulsory labour could be imposed as a punishment for holding or expressing political views. It was arguably not within the competence of this Committee to develop conclusions on practices that, while of concern in themselves, were not breaches of a labour standard ratified by Cambodia.

The Worker members recalled that Cambodia’s serious failure to respect fundamental rights and principles at work had been examined by the Committee almost every year for the past decade, unfortunately with very disappointing results. The Committee of Experts had double footnoted this case due to its concern over the legislative and practical measures undertaken by the Government and there were no reasons to call that decision into question. Basic civil rights, including the right to free speech and the right to associate and assemble, were not guaranteed in the country. On the contrary, workers and citizens were systematically subjected to heavy criminal penalties involving compulsory labour for exercising their rights protected under the Convention. Recourse to sanctions involving forced labour or compulsory labour as a means to censor the expression of opposing views on political, social or economic matters or to punish participation in strikes was clearly prohibited under Article 1 of the Convention. The right to associate and assemble provided the means through which citizens sought to secure the dissemination and acceptance of their views and thus clearly fell under the remit of protection provided by the Convention. Yet trade union leaders and members were effectively barred from enjoying these rights. This Committee and other ILO supervisory bodies had repeatedly condemned the imprisonment of Cambodian trade unionists for expressing their views and engaging in peaceful activities, including strikes. The Worker members deeply regretted that, despite very clear recommendations to the Government, the crackdown on trade unionists continued. The number of trade unionists facing criminal charges or imprisonment in reprisal for peaceful trade union activities was steadily increasing. The Cambodian Labour Confederation alone counted at least 26 leaders and members who were currently threatened with criminal punishment for expressing their views on problematic social and economic policies. Recently passed labour laws or those that were under discussion seemed to be designed to tighten the grip on trade unionists even further. The Committee of Experts and also the UN treaty bodies, had criticized the 2016 Law on Trade Unions and the 2015 Law on Associations and Non-Governmental Organizations (LANGO), which effectively denied freedom of association rights to teachers, civil servants and domestic workers. Despite the amendments made to the draft Minimum Wage Law, the Law remained problematic particularly as it prohibited the dissemination of research on wages, which had not been submitted to the National Tripartite Council within 15 days. This restriction could have a severe impact on academic freedom, and economists and academics could be potentially restricted in their ability to disseminate, access and discuss vital research on economic and social issues. Moreover, the draft Law provided for heavy and disproportionate administrative fines with no explicit right of appeal. These fines, if unpaid, would lead to criminal proceedings. Considering the likely inability of many workers and union leaders to afford heavy fines, these provisions cumulatively would lead to the effective criminalization of the peaceful exercise of fundamental freedoms. These issues were clearly connected to last year’s discussion with respect to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In its conclusions, the Committee called on the Government to ensure that freedom of association could be exercised in a climate free of intimidation and violence against workers, employers and their respective organizations. It also requested the Government to hold consultations with its social partners in order to develop a time-bound roadmap for the implementation of the recommendations. In its engagements with the direct contacts mission which visited the country in March 2017, the Government admitted that the Law on Trade Unions was defective in many ways. It was therefore disappointing that, even though the recommendations were issued one year ago, the Government only started to hold consultations a few weeks ago. The Government should explain what caused this excessive delay and how it intended to overcome its tardiness.

The Worker members expressed their deep concern at the deteriorating political and social atmosphere, including the prosecution and imprisonment of political opponents and human rights defenders. While the offences of public defamation and insult under the Penal Code were punishable with fines only, the law had been applied in an arbitrary manner in order to punish political opponents and human rights defenders with penalties of imprisonment. The UN Special Rapporteur on the situation of human rights in Cambodia had noted that the range of provisions in the Penal Code used to curtail freedom of expression was ever-increasing and insisted that laws must be applied consistently by the Government and the courts. The Rapporteur had warned that the criminal punishment of activists may create an atmosphere of fear and intimidation that could negatively affect the right to freedom of expression, leading to self-censorship. Moreover, the clampdown on trade unions and civil society activists had coincided with the dissolution of the main opposition party, the Cambodian National Rescue Party (CNRP), by the Supreme Court. While the Law on Political Parties was amended in 2017, it retained its problematic provisions. Various offences related to the administration or management of a political party which had been dissolved, or whose activities had been suspended by a court, or whose registration had been refused, were punishable with sanctions of imprisonment for a term of up to one year, which involved compulsory labour. A total of 118 CNRP members had been banned from political activity for five years. It was impossible not to share the Committee of Experts’ deep concern over the wide-scale detentions and prosecutions targeting the opposition party, civil society and trade unions. The absence of legal guarantees of freedom of expression, freedom of peaceful assembly, freedom of association, as well as freedom from arbitrary arrest, clearly exposed workers and citizens to the imposition of compulsory labour as a punishment for holding or expressing political or ideological views. In light of the lack of independence of the judiciary, as noted in 2008 by the direct contacts mission, this was of particular concern. The ability of the judicial system to discharge its mandate was compromised by the lack of capacity; the judiciary was subject to political interference, which compromised its ability to exercise its functions in an impartial and independent manner. The UN Special Rapporteur had noted that access to justice was still denied to many, and expressed concern at the prevalence and excessive length of pre-trial detention. Criminal proceedings were marred by inconsistencies and irregularities; different judges applied different standards of proof. This practice stood in contradiction with the principle that everyone charged with a criminal offence had the right to know and challenge the evidence against him or her. Consistency and fairness, especially in criminal cases, required that the standard of proof must be the same in all similar cases. The general elections were imminent in Cambodia. Fundamental freedoms and the rule of law would be meaningless if they were not upheld during times of contentious debate. Freedom of expression and freedom of association were crucial to democracy, social progress and inclusive economic growth. Restricting these rights under the threat of compulsory labour constituted not only a denial of basic freedoms but represented a serious stumbling block in the country’s path to democracy and prosperity.

The Employer member of Cambodia considered that anything not related to the application of Convention No. 105, such as matters relating to the Minimum Wage Law, the Law on Trade Unions, sanctions of imprisonment or any other sanction except that of forced labour, should be struck from the Record of Proceedings as not being relevant to the case. The discussion of this case should be limited to forced labour. As there was no evidence of a clear breach of the Convention, it was unacceptable that Cambodia was discussed by the Committee yet again. She highlighted the impact the discussion in this case could have on the decision of other governments and businesses to engage with and invest in Cambodia. The mere discussion of this case under Convention No. 105 would tell the world (or strongly imply) that Cambodia engaged in forced labour. This was not the case as there was no evidence presented to that effect. The Cambodian employers had a deep interest in the work of the Committee to address challenges to the application of Conventions. They were present to address challenges to protect their business and investment environment. Cambodia had a vibrant and dynamic economic environment that was changing and diversifying quickly. The engagement of governments and investors around the world was necessary for the growth and creation of good quality jobs in Cambodia. Every country deserved a fair and due process of review by the Committee of Experts. However, Cambodia had been unfairly sanctioned with a double footnote. The evaluation of the Committee of Experts demonstrated that there was no breach of the Convention, only possibilities which were the same for other countries with similar legislation. The Conference Committee should review only the most serious breaches of Conventions. A key outcome of the discussion in this case should be a call to review the transparency and integrity of the double-footnoting procedures.

The Worker member of Cambodia affirmed that the leaders and members of the independent trade unions still faced serious problems including murder, detention, discrimination, violence and punishment when they were trying to exercise their rights. In 2004, Chea Vichea, Ros Sovanareth and Hy Vuthy had been murdered. In 2013, during a general strike demanding a higher minimum wage for garment workers, five workers had been killed, 23 workers had been jailed for months, and more than 30 others had been injured. The right to public assemblies and strikes had been restricted and unions could only meet members in private places. The criminal charges against six union leaders for taking part in the 2013 strikes were still effective. The Government was requested to drop the charges against them, to enforce the recommendations of the Committee and provide the reports of the three committees charged with investigations of the murders and violence in the 2013 strike, with the purpose of bringing the perpetrators to justice and compensating victims. Between 2014 and 2017, union leaders and thousands of workers were faced with violence from third parties or the police when they exercised their rights in industrial actions, 26 workers had faced criminal charges and 17 of them had been jailed from two to eight months. The unions had brought these cases to the Committee in 2016 and 2017. The Committee had specifically asked the Government to resolve these cases, but there had been no progress and in one case new charges had been put up against the leaders. Following the recommendations made by the Committee, the Government had committed itself to enforce them with a roadmap of concrete actions and two consultations had been carried out. The speaker invited the Government to finalize a time-bound roadmap to amend the Law on Trade Unions and the LANGO so as to bring them into conformity with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and to amend the Penal Code and the Law on Peaceful Demonstration to bring them into conformity with Convention No. 105.

The Government member of Bulgaria, speaking on behalf of the European Union (EU) and its Member States, as well the former Yugoslav Republic of Macedonia, Montenegro and Albania, Bosnia and Herzegovina, and Norway, referred to the EU’s promotion of the core labour standards as part of its 2015 Action Plan on Human Rights, which featured the eradication of forced labour and the protection of freedom of association and the right to organize. Cambodia had benefited from the duty-free and quota-free access to European markets through the “Everything But Arms” (EBA) arrangement under the Generalised Scheme of Preferences. The EU was the largest market for Cambodia’s exports, especially for the garment sector. In return, the EBA regime required Cambodia to comply with its obligations under the core international human rights principles and labour Conventions, to which the EU and its citizens attached great importance. The speaker recalled that the EU had expressed its concern over the deterioration of democracy, human rights and the rule of law. The inclusion of penalties of imprisonment involving compulsory labour in provisions that had been used to target those expressing dissenting political or ideological views was also a matter of great concern. These included the relevant provisions of the Law on Political Parties of 2007 and the Penal Code related to incitement to disturb public security by speech, writing, picture or any audiovisual communication in public or to the public, publication of commentaries intended to unlawfully coerce judicial authorities, and discrediting judicial decisions. The speaker requested the Government to ensure that these provisions were used only when fully justified by the facts of the case and only in connection with violence or incitement to violence. The application of the Penal Code, the Law on Trade Unions, the LANGO and the Law on Peaceful Demonstration should not lead in practice to punishment involving compulsory labour in situations covered by Convention No. 105. No penalties involving compulsory labour should be imposed for the peaceful expression of political views or views opposed to the established system. She strongly urged the Government to cease using the judiciary as a political tool to harass, intimidate, arrest and prosecute political opponents, trade union members, members of civil society, labour rights activists and human rights defenders. It was the EU’s intention to closely monitor the situation, while remaining ready to assist Cambodia in meeting obligations linked to democratization, human rights and the rule of law, and in supporting its economic and sustainable development.

The Government member of Thailand, speaking on behalf of the Association of Southeast Asian Nations (ASEAN), reaffirmed their strong commitment to the elimination of forced labour, in keeping with the ASEAN Labour Ministers’ Work Programme 2016–20, and the Work Plans of the Subsidiary Bodies. ASEAN member States looked forward to their continued cooperation with the ILO in implementing regional commitment to its goals. The speaker welcomed the progress that had been made in promoting labour rights and the Government’s assurance that forced labour had been strictly prohibited both in law and in practice. He encouraged the Government to continue its efforts to promote labour rights, decent working conditions and harmonious industrial relations through social dialogue.

The Worker member of Germany, speaking on behalf of the German Confederation of Trade Unions (DGB) and the Dutch, Danish, Finnish, Norwegian and Swedish trade unions, stated that the Cambodian Government was violating this Convention in law and in practice. Section 68 of the Law on Prisons provided explicitly that prisoners could be obliged to perform compulsory labour. The Government used imprisonment as a deliberate means to obstruct the activity of trade unionists and to penalize activities which were critical of the Government. Legal provisions that forbade insulting the monarchy, incitement to crime or to the disturbance of public order, defamation, bribery of witnesses or damaging national interests were systematically misused. The improper use of these provisions of criminal law was particularly problematic. Through the formulation of a very extensive scope of application, these legal provisions were used inappropriately to strategically intimidate and repress opponents of the regime. A trade union activist was sentenced in 2017 to two years’ imprisonment for incitement to serious crime because he had called, in a radio interview, for the removal of trade preferences by the United States and the EU, and journalists had been charged with defamation because they had asked the inhabitants of a village about their voting behaviour. Pre-trial detention was also being used arbitrarily for long periods of time and without due legal process. The arbitrary misuse of prison sentences, which were always accompanied by compulsory labour under the existing legislation, created a climate of threats and intimidation, in which it was impossible not only for trade unionists but also for civil society as a whole to exercise fundamental rights such as freedom of expression, freedom of assembly and freedom of association – human rights which were protected as a matter of principle by the Cambodian Constitution. She called upon the Government to bring both its law and its practice into line with this Convention and to put an end to the repression of trade unionists and dissidents.

The Worker member of Indonesia, speaking on behalf of the Confederation of Indonesia Prosperity Trade Union (KSBSI) and the Korean Confederation of Trade Unions (KCTU), insisted that no worker should be charged or arrested for legitimate activities. He noted the Committee of Expert’s concern that trade union members, human rights defenders and NGO representatives continued to be subjected to threats, harassment, arrest, pre-detention and prosecution on charges of defamation and public insult. Although under the Penal Code, those offences were punishable only by fines, various trade union members had received penalties of imprisonment. The speaker highlighted instances of arbitrary and repressive application of criminal laws where workers had protested unfair dismissals of trade union leaders or failure to enforce arbitral awards and court orders. On 14 February 2018, four union leaders of the Workers Friendship Union Federation were summoned to court and sent for pre-trial detention for having organized a strike. In 71 instances since the last national election in 2014, trade unionists had been taken to court by employers and authorities for such criminal offences as defamation, intentional violence and damage, or interfering with traffic during labour protests. Under the Penal Code, they could receive prison terms ranging from six months to five years. A coordinator of the agricultural association was jailed for six months under articles 377 and 378 of the Penal Code, which provided for penalties of imprisonment from six months to three years, and fines from 1 million to 6 million riels. On 6 February 2016 protest against the 2015 dismissal of 45 employees attempting to form a branch of the Cambodian Transport Workers Federation had ended with a violent attack in which bus drivers had been arrested and 14 people injured. An officer of the Cambodia Informal Worker Association had been arrested on charges of aggravated intentional violence, obstructing public officials and obstructing a public road. On the same day, four leaders of independent trade unions, including Ath Thorn, President of the Cambodian Labour Confederation had also been charged, although none had been present. The speaker underscored the need to stop the misuse of laws to criminalize workers and trade unionists. He called on the Government to take urgent, concrete action to comply with the Committee of Expert’s call to fully respect trade union rights and to ensure trade unionists’ ability to act in a climate free of intimidation or violence.

The Government member of Switzerland expressed deep concern at the detention measures, treatment and judicial processes to which members of the opposition party, NGO representatives, trade union members and human rights defenders were subject. They had been punished and imprisoned for their activities, and their prison sentences included an obligation to work while in prison. In that regard, he called on the Government of Cambodia to take the necessary steps to guarantee freedom of opinion and expression, freedom of association and the right to peaceful assembly. Those rights were an integral part of the human rights framework and enshrined in the fundamental labour Conventions. He also encouraged the Government to undertake all the legal changes needed to abolish sentences that included an obligation to work, in order to comply with this Convention.

The Worker member of France said that the violations of Convention No. 105 were part of an arbitrary practice that was contrary to all values of humanism and respect for universal human dignity, in view of the fact that through the LANGO law, the Government of Cambodia was using extremely coercive measures including forced labour as a means of intimidation and retaliation. The general requirement of NGO neutrality towards political parties under section 24 of the LANGO law allowed arbitrary interpretations by the administration, which sought to suspend activities, impose fines and cancel the registration of NGOs. The same provision also authorized the Ministry of the Interior to cancel registration following an extremely vague allegation of endangering public and national safety. Accordingly, the Ministry of Foreign Affairs had ordered the National Democratic Institute (NDI) to close and to expel all its foreign staff on 23 August 2017. The Foreign Ministry had asserted its authority on the basis of section 34 of the LANGO to put an end to the activities of any international civil society organization that had not registered a memorandum of understanding with the Ministry. The order had come after the NDI had been accused of providing the Cambodia National Rescue Party (CNRP) with a “malicious” plan to overthrow the Government. Moreover, on 28 July 2017, the governor of the Ek Phnom district in Battambang published a letter ordering all commune chiefs in that district to report on all NGOs and associations operating in the region. The letter indicated that organizations needed to obtain the permission of the district authorities before conducting activities in that district. Commune chiefs were required to publish reports on NGOs and associations which were active in that district. The letter also indicated that commune chiefs who failed to report such information would incur penalties, and that was what the Cambodian Government was using as a means of intimidation. The grounds for charges under the LANGO were vague, subject to interpretation and thus entirely devoid of neutrality and objectivity. NGOs and civil society organizations must now submit annual reports to the Minister of the Interior detailing their activities and finances. This allowed the Government to check associations’ accounts, question some of their choices and even fabricate false evidence to discredit them. Such contrived offences, aimed at silencing civil society, were classified as defamation or disruption of public order, and those two offences were liable to severe punishment in Cambodia. A striking example was the length of the pre-trial detention of the leaders of the Cambodian Human Rights and Development Association (ADHOC), who had been held in such detention with forced labour for 427 days. Taking into account the incalculable number of possibilities of falling foul of the LANGO, the speaker called upon the Cambodian Government to fully commit to completely eradicating all recourse to forced labour, both as a form of intimidation or preventive measure to silence free speech and as a punishment for any sort of crime.

The Worker member of Australia recalled that her delegation had repeatedly registered its deep concern over the situation of labour rights in Cambodia, where trade union members faced ongoing discrimination, harassment, threats, pre-trial detention, arrest and imprisonment for seeking to exercise their fundamental rights despite the ratification of the Convention in 1999. The Government’s persistent non-compliance with international labour standards, particularly concerning freedom of peaceful assembly, freedom of association and freedom from arbitrary arrest, required the Committee’s ongoing scrutiny. The right to peaceful assembly, premised on a notification procedure of the Law on Peaceful Demonstration, had been turned into a system of permission. Arbitrary interpretations and enforcement of the law increased uncertainty and the risk of sanctions for those seeking to exercise that freedom. Concrete examples included, in 2016 and 2017, Phnom Penh City Hall’s use of armed police to bar 2,000–3,000 members of a consortium of independent unions from peacefully marching to the National Assembly for a May Day celebration; restricting NGOs such as the Cambodian Human Rights Action Committee from rallying to celebrate the Human Rights Day (10 December 2016), threatening “measures” if protestors were to disobey; and rejecting the request of 200 Khmer Krom to deliver a petition to the National Assembly (22 June 2017). Similarly, the authorities of Banteay Meanchey province had warned villagers against joining the CNRP and NGO celebrations on Human Rights Day; Battambang’s Bovil district’s provincial administration had rejected permission for the Boeung Bram community to march on Human Rights Day; Kampot authorities had denied three requests for celebrations; and Takeo authorities had forbidden the Khmer Krom Federation from celebrating International Human Rights Day in several villages and communes. More explicit threats by government officers had clearly violated Article 1 of the Convention. In a speech, the Prime Minister Hun Sen had threatened to “eliminate 100 or 200 people” if they supported the “colour revolution” to ensure Cambodia’s stability. The Prime Minister had repeated his readiness to use weapons and jail to curb demonstrations or challenge to 2018 election results. Likewise, the Minister of Social Affairs, Vong Soth, had warned of using bamboo rods against anyone protesting against the 2018 election. Prime Minister Hun Sen had ordered garment industry union leaders to ensure that factory workers did not organize political protests or associate with the remnants of the since-dissolved opposition party. The speaker urged the Committee to issue its strongest statement against the Government’s persistent breaches of the Convention and to maintain its supervision over the matter.

The Government representative thanked the delegates for their constructive interventions and comments. Clarification as to the grounds on which Cambodia was double footnoted was needed. In the Government’s opinion, this was linked to the upcoming July 2018 elections. Some delegates disguised the session as a political platform to tarnish the Government’s reputation, efforts and achievements. To express their political discontent, they should have used a different forum. In Geneva, a number of UN institutions and mechanisms dealt with human rights, the rule of law and democracy issues. The speaker recalled that the session of the Human Rights Council could be used by those wanting to improve the situation of human rights in the country. The International Labour Conference was the forum to discuss labour laws and relevant Conventions. It was not proper to use this forum to make political propaganda in order to give preferences to other political parties or individuals. Regarding the situation of freedom of association, the Government and the relevant parties, including the ILO, had agreed on the way forward to improve it. In reply to the statement by the EU representative, the speaker pointed out that while the EBA scheme had considerably helped the people and economy of Cambodia, the country’s sovereign interests should be respected. He urged the international community to respect Cambodia’s sovereignty, its peace, stability and economic development.

The Worker members stated that there was no effective guarantee of basic civil liberties in Cambodia, and those who exercised the right to freedom of expression and assembly became targets for criminal prosecution, imprisonment and compulsory labour. Trade unionists, human rights’ defenders, the political opposition and virtually anyone who adopted views opposed to those of the Government had come under enormous pressure involving detentions and prosecutions. Legislative provisions on public defamation had been applied in a selective manner to punish critical opinions. The Worker members expressed very deep concern over the lack of impartiality and independence in the judiciary, as well as the excessive pre-trial detention periods aimed at punishing those who seemingly opposed the current Government. This was particularly worrying in the context of the upcoming elections, during which free debate and exchange of views became even more important. The Government had therefore an obligation to take legislative measures to ensure that penalties involving compulsory labour were not imposed in order to silence and censor the peaceful expression of political opinions. The right to association and assembly provided the means through which citizens could seek to secure the dissemination and acceptance of their views and must therefore also be protected. Moreover, Article 1(d) of Convention No. 105 prohibited the imposition of compulsory labour for organizing or peacefully participating in strikes. The Government must ensure that freedom of association could be exercised in a climate free of intimidation and violence. All individuals who had been imprisoned for having exercised their right to freedom of expression and assembly must be released immediately and unconditionally. Institutional reforms were also necessary in order to guarantee the independence and impartiality of the judiciary. Freedom of expression and peaceful assembly, freedom of association and freedom from arbitrary arrest should be guaranteed as safeguards against the imposition of compulsory labour for exercising these rights. This required a serious commitment to undertake extensive reforms on a number of laws, which were clearly not in conformity with Convention No. 105, including the Law on Political Parties, the Penal Code, the Law on Trade Unions, the LANGO, the Law on Peaceful Demonstration and the Draft Minimum Wage Law. Freedom of expression and assembly, the right to strike and freedom from forced and compulsory labour were extremely important issues for working people but also for the values of the ILO as a whole. Therefore, the Government needed to work with the ILO in order to give full effect to Convention No. 105. A double-footnoted case meant that the Committee of Experts had serious concerns. The Worker members referred in this respect to section 68 of the Law on Prisons under which convicted prisoners who had been assessed as physically capable should be assigned to work as part of the prison’s daily routine and disagreed with the request to strike comments concerning the Law on Trade Unions and the draft Minimum Wage Law from the Record of Proceedings.

The Employer members reiterated that while it was undeniable that there were serious issues of concern regarding the situation of human rights in Cambodia, as noted by various UN bodies, including the UN Special Rapporteur, the Committee had to limit itself to dealing with Convention No. 105. The fact that this was a double-footnoted case meant that this was a serious case. However, no evidence demonstrating the existence of forced labour in the country had been provided. While there was a potential risk that forced labour could be imposed, there was no evidence that it had occurred. In these circumstances, and considering serious concerns regarding the application of various legislative provisions establishing sanctions in practice, the Government should be asked to give assurances that it would not be imposing forced labour.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed.

Taking into account the Government’s submissions and the discussion of the case that followed, the Committee urged the Government to:

- take measures in law and practice to ensure that no penalties involving forced labour or compulsory labour may be imposed in compliance with Article 1(a) of Convention No. 105, including the amendment of existing legislation that permits forced labour; and

- the Committee calls on the Government to avail itself of ILO technical assistance to address this recommendation. The Committee also asked the Government to report in detail on the measures taken to implement this recommendation to the next meeting of the Committee of Experts in November 2018.

The Government representative reiterated that forced labour had no place in Cambodia and that his Government was willing to provide factual and legal elements to shed light on this misunderstanding or misinterpretation of the Convention and of Cambodia’s relevant law and regulations that had given rise to the wrongful allegation that such practices existed. Despite his respect for the work of the Committee of Experts, any review that went beyond the Convention’s scope was not helpful to its application. Mutual understanding and close collaboration between social and development partners were effective tools for resolving misunderstandings and tensions. The existing social dialogue and tripartite mechanisms were especially critical to maintaining Cambodia’s hard-earned peace, stability and development. He welcomed the assistance of the ILO in promoting labour rights and decent work in accordance with international labour standards.