Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2018, and the detailed discussion which took place in the Conference Committee on the Application of Standards in May–June 2018, concerning the application by Cambodia of the Convention.

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. In its previous comments, the Committee noted that, pursuant to section 68 of the Law on Prisons of 2011, sanctions of imprisonment involve an obligation to work. The Committee also noted that, according to section 42 of the Law on Political Parties of 2017, 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, involving compulsory labour. The Government stated that no political party had been dissolved by a court decision.

The Committee further noted that, although the offences of public defamation and insult (sections 305–309) are punishable with fines only under the Penal Code of 2009, the application of those provisions in practice led to the imposition of penalties of imprisonment. 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: (i) sections 494 and 495 on incitement to disturb public security by speech, writing, picture or any audiovisual communication in public or to the public; (ii) section 522 on publication of commentaries intended to unlawfully coerce judicial authorities and; (iii) section 523 on discrediting judicial decisions. Additionally, the legislation on cybercrime was being drafted.

Moreover, the Committee expressed its deep concern over the detentions of, and prosecutions against members of opposition parties, NGO representatives, trade union members and human rights defenders since 2014, including the arrest of and the prosecution against several senior member of the Cambodia National Rescue Party (CNRP) in 2016 and 2017.

The Committee notes from the observations of the ITUC that the practice of criminalizing the expression of different political and ideological speech and opinion is normalized by the Government, coupled with legislation that enables it to do so. Under the Penal Code, the application of some provisions in practice may fall within the scope of the Convention. For example, section 311 criminalizes the public denunciation of facts known to be false that is addressed to competent authorities, such as a judge, judicial police officer or an employer, or a person with power to refer the denunciation to the competent authority. Such offence is punishable by imprisonment of between one month to one year and fines of 100,000–2,000,000 Cambodian riels (KHR) (about US$24–US$487) pursuant to section 312. Moreover, section 502 criminalizes the use of words, gestures, writings, sketches or objects which undermine the dignity of persons. Particularly, if the insult is against a public official or a holder of public elected office, the offence is punishable by imprisonment of one to six days and fines of KHR1,000–100,000 (about US$0.24–US$24). In addition, the amendment to the Constitution, which was passed on 15 February 2018, further undermines the fundamental freedoms in the country, along with other changes to domestic law, including the Penal Code. The new crime of insulting the King, pursuant to section 445 of the amended Penal Code, is punishable by up to six months in prison and fines of up to KHR10,000,000 (US$2,495) for speeches, gestures, writings, paintings or public meetings that affect the dignity of the monarch. The ITUC also indicates that two persons have been arrested under section 445. On 14 May 2018, Khean Navy, the principal of a Kampong Thom primary school, was arrested for insulting the King after he had blamed the monarch for the dissolution of the CNRP in 2017 and the loss of Khmer land. On 21 May 2018, another person in Siem Reap was charged for sharing a post on Facebook that allegedly insulted the King.

The Committee notes that, in its conclusions adopted in June 2018, the Conference Committee urged the Government to take measures in law and practice to ensure that no penalties involving forced or compulsory labour may be imposed in compliance with the Convention, including the amendment of existing legislation that permits compulsory labour. It also called on the Government to avail itself of ILO technical assistance to address this recommendation.

The Committee notes the Government’s information in its report that the Law on Prisons of 2011 was adopted in accordance with a wide range of international standards, and that prisoners are required to perform labour for the purposes of education, reformation, rehabilitation and reintegration into society. The Government states that the Convention cannot be interpreted alone without any reference to the Forced Labour Convention, 1930 (No. 29), and that its application shall not be carried out with any special agenda in favour of any particular group. The Government also indicates that, under Cambodian laws, there is no penalty imposed for the peaceful expression of political views, and there are no prisoners convicted for their peaceful expression of political views. Consequently, no punishment involving compulsory labour is imposed in situations covered by Article 1 of the Convention. The Government further indicates that, regarding incitement, sections 494 and 495 of the Penal Code only provide for penalties of imprisonment (involving compulsory labour) for acts directly inciting the commission of a felony or the commission of any act gravely disturbing public security. Section 522 provides for penalties of imprisonment for the publication, prior to the final decision of the court, of any commentaries aimed at putting pressure on the court where a law suit is filed, in order to influence the decision of the court. The purpose of this section is to ensure judicial independence. Similarly, section 523 aims at protecting the country and its institutions from danger caused by acts of criticisms as stipulated therein. Lastly, the Government states that a copy of the Law on Cybercrime will be provided to the Committee once adopted.

The Committee notes that, according to a news release of the Office of the High Commissioner for Human Rights (OHCHR) of the United Nations (UN) of 30 April 2018, the main opposition, the CNRP, was dissolved in November 2017. The leader of the dissolved CNRP, Kem Sokha, who was detained in September 2017, remains in prison on treason charges related to comments he made in 2013 about his grass-roots political strategy to challenge the current Government. Many other CNRP members and supporters have also been imprisoned, along with former leaders of other political parties, including Nhek Bun Chhay of the Khmer National United Party, and Soun Sereyrotha of the Khmer Power Party.

The Committee also notes that, on 11 May 2018, the spokesperson for the UN High Commissioner for Human Rights expressed disappointment at the decision by Cambodia’s Court of Appeal on 10 May 2018 to uphold the “insurrection” conviction of 11 CNRP members and supporters, who were originally sentenced on 21 July 2015 to between seven and 20 years in prison in relation to violence during a demonstration at Phnom Penh’s Freedom Park on 15 July 2014. The spokesperson stated that no evidence was produced during the trial or appeal to link any of the 11 accused persons with violence, or the charges of “insurrection” defined in laws as “collective violence liable to endanger the institutions of the Kingdom or violate the integrity of the national territory”. None of the injured complainants or video recordings of the incident that were presented as evidence identified any of the accused persons as having undertaken, incited or guided any violent acts. Moreover, the Committee notes that, on 20 February 2018, the UN Special Rapporteur on the human rights situation in Cambodia, and the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, expressed their grave concern about changes to Cambodia’s Constitution, along with other changes to domestic law including a lèse-majesté provision in the Penal Code making it illegal to insult the monarchy.

In this regard, the Committee considers that, although the Convention was designed to supplement Convention No. 29, the exception in respect of prison labour laid down in Article 2(2) of Convention No. 29 “for the purposes of this Convention” does not automatically apply to Convention No. 105. Consequently, with regard to the exemption of prison labour, if a person has to perform compulsory prison labour because she or he has expressed particular political views, the situation is covered by Article 1(a) of the Convention. The Committee observes in this regard that, while convict labour exacted from common offenders convicted, for example, of robbery, kidnapping, bombing or numerous other offences, is intended to reform or rehabilitate them, the same need does not arise in the case of persons convicted for their opinions (see 2012 General Survey on the fundamental Conventions, paragraph 300).

The Committee therefore deplores the imprisonment (involving compulsory prison labour) of leaders, members and supporters of the CNRP, which was dissolved in November 2017, for their political views. It must also express its deep concern at the adoption of amendments to the Penal Code which criminalize criticism of the King. The Committee once again recalls that restriction on fundamental rights and liberties, including freedom of expression, have a bearing on the application of the Convention if such restrictions are enforced by sanctions involving compulsory prison 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 once again urges the Government to take immediate measures to ensure that no penalties involving compulsory labour, including compulsory prison labour, may be imposed for the peaceful expression of political 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 relevant provisions in the Penal Code does not lead in practice to punishment involving compulsory labour in situations covered by Article 1(a) of the Convention. The Committee further requests the Government to provide a copy of the amendments to the Penal Code in 2018 which criminalize criticism of the King, and to provide information on its application in practice, including any prosecutions, convictions and penalties imposed in this regard. Lastly, it requests the Government to provide information on any progress made regarding the adoption of the Law on Cybercrime, and to provide a copy once adopted. The Committee encourages the Government to avail itself of ILO technical assistance in order to bring its law and practice into full compliance with the Convention.

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