What was the real motivation behind the release of Cambodian opposition leader Kem Sokha from jail? That is among the key questions being posed by analysts attempting to discern the evolution of domestic politics in the country following elections in July, which predictably extended the rule of the Cambodian People’s Party (CPP) under Prime Minister Hun Sen.
Hun Sen himself has denied that Kem Sokha’s recent release from jail was due to “international pressure,” which had been the accusation leveled against the government. He has instead stated that Kem Sokha’s emplacement under house arrest was conducted for “humanitarian reasons; fearing that he may die in prison, that we decided to change the detention place. We try to save [the] life of the culprit.” He added that “it was just the change of the location of detention in case he dies in prison and causes trouble to the government.”
Hun Sen’s comments linking Kem Sokha’s release to domestic politics seem to be reasonable. The president of the Cambodia National Rescue Party (CNRP), the country’s largest opposition party, was arrested in a major opposition crackdown that ultimately led to the CNRP’s dissolving by the Supreme Court in November 2017. He remained in pre-trial detention for almost a year until September 10, when he was quietly released from jail, driven to his home in Phnom Penh, and placed under house arrest. And that came just 19 days after the Supreme Court denied him bail and ordered him to serve an additional six months in pre-trial detention, and all of this came after the ruling Cambodian People’s Party (CPP) easily won a general election in July, securing all 125 seats in the National Assembly, in addition to the all-but-four seats it secured in the upper house after Senate elections four months earlier.
But beyond the plausibility of the explanation offered by Hun Sen, there is a larger problem with his comments. In his comments, he suggested that “we decided to change the detention place. We try to save [the] life of the culprit” (emphasis added). Constitutionally, Cambodia is supposed to have separation of powers so that the executive (the Prime Minister and government) cannot have a say in the matters of the judiciary, including the arrest or release of prisoners (except for pardons). Clearly, this isn’t the case, as we will come to shortly. But yet Hun Sen states clearly that not only did he have a say over Kem Sokha’s release, it was also a decision based on the fact that had Kem Sokha died in prison it would cause “trouble to the government.” So it was politically-motivated domestically, just not for the sake of the international community, he says.
The reason I mention this is that if the international community welcomes the release of Kem Sokha from jail along with the explanation offered by Hun Sen (as seems to be the case) then aren’t they arguably negating one of democracy’s most important aspects: judicial independence? If Kem Sokha was released from jail at the behest of the government, not the courts, is this to be desired? Isn’t this just welcoming a more authoritarian way of ruling a country?
Cambodians also have the right to question whether “compassion” isn’t something more malicious. Before Kem Sokha’s unsuccessful bail hearing on August 22, Ministry of Justice’s spokesman Chin Malin said clearly that: “a demand or pressure from any group will have no effect on the court’s right to make independent decisions. The court will not consider the demands or be pressured. It will consider legal and factual matters, testimony and relevant proof.”
This is a strong statement by the Ministry, but it flies in the face of what happened afterwards. Indeed, on August 22 the Supreme Court rejected Kem Sokha’s appeal for bail and ruled to extend his pre-trial detention by another six months because of “national security” reasons. Yet, 19 days later he was released, as we are told by Hun Sen because of the government’s compassion and fear of what happens if he had died in prison. Could Kem Sokha’s health really have deteriorated that much in 19 days, considering there are claims he has been in ill-health for months, if not since his initial detainment? Maybe, maybe not. But the point is that the way that all this has played out makes it appear that the Supreme Court’s ruling was overruled by the government.
Of course, Cambodia watchers are all too familiar with a fettered judiciary. Take, for the example, the International Commission of Jurists (ICJ) report of 2017 that stated “the rule of law is virtually absent from the Cambodian justice system” and added “the single largest problem facing the Cambodian justice system is the lack of independent and impartial judges and prosecutors.”
As I noted previously in The Diplomat, Dith Munty, the Supreme Court’s president, is a member of the CPP’s elite Permanent Committee. On the CPP’s Central Committee – which is less powerful and more bloated that the Permanent Committee – now sits Chiv Keng and Chea Leang, members of the Supreme Court’s jurist council, as well as Yun Bunleng, president of the Appeals Court, and justice ministry spokesman Kem Santepheap.
Kingsley Abbott, a senior international legal adviser for Southeast Asia at the ICJ, put it that “the use of the rule of law by [the Cambodian government] as a sword to purge its opponents, rather than what it’s intended to be – which is a shield to protect citizens from arbitrary state action – is now a familiar part of the government’s narrative.”
That sword is also used to pacify critics with arbitrary state action. Since the CPP won the July general election, what we’ve seen since is straight from its standard playbook: Before general elections it arrests critics and activists, then releases or pardons them post-election. August saw pardons for Tep Vanny, a land-rights activist, the outspoken analyst Kim Sok, and numerous CNRP members who wrote an apology letter to Hun Sen.
The Cambodian Constitution gives King Norodom Sihamoni the right to grant pardons where he sees fit, given his position as head of the Supreme Council of the Magistracy and (under Article 132) as the “guarantor of judicial independence.” Although officially called “royal pardons,” they are really “political pardons” ordered by Hun Sen. Indeed, Hun Sen has said he ordered the recent pardons because of his own “kindness,” while Council of Ministers spokesperson Phay Siphan put it down to Hun Sen’s “virtue.” Arbitrary state action will take and give.