Legal analysis of charges against Cambodian opposition leader Sam Rainsy
Today, 15 November 2012, the Cambodian Center for Human Rights ("CCHR") re-releases its "Analysis of the Legal Grounds for Conviction and the Fairness of the Judicial Proceedings in the Criminal Cases Against Sam Rainsy" - originally released in February 2011. Sam Rainsy, eponymous leader of the opposition Sam Rainsy Party, was convicted in 2010 on charges of (1) wrongful damage to property, (2) incitement to discrimination, (3) falsifying public documents, and (4) disinformation, in connection with his removal of a demarcation post on the Cambodia-Vietnam border and subsequent online release of maps to prove his allegations of Vietnamese encroachment into Cambodian territory. He was sentenced to 12 years' imprisonment but remains in exile in France.
The Legal Analysis finds that the Svay Rieng Provincial Court and the Phnom Penh Court of First Instance - and, ultimately, the Court of Appeal and the Supreme Court too - failed to establish the requisite elements of the respective offenses and questions the bases for the convictions brought against Sam Rainsy. The Legal Analysis also considers the legality of the removal of Sam Rainsy's parliamentary immunity, concluding that as the acts and expressions of opinion that resulted in the convictions were in pursuance of his duties as an elected representative of the Cambodian people, they fell under the protection of his parliamentary immunity, which should not have been removed. Lastly, the Legal Analysis examines the fairness of the proceedings against fair trial standards under Cambodian and international law, and concludes that his fair trial rights were not observed.
Despite the injustice and political motivation of these convictions, Cambodia's National Election Committee (the "NEC") confirmed that, on 12 October 2012, Sam Rainsy's name was not included on the voter list for next year's national election - on the grounds that he is a convicted criminal. This means that even if he is granted an official royal pardon before the election on 26 July 2013 - which, under Article 34(2) of the (amended) Law on Elections of Members of the National Assembly, would mean that he would be "rehabilitated" and therefore eligible to stand for election - Sam Rainsy will nonetheless be prevented from running in the election as President of the newly-formed Cambodian National Rescue Party. Under Articles 33(3) and 34(5), any candidate standing for election has to be eligible to vote and registered in the voter list. Under Article 50, in order to be included on the voter list, a citizen must "not be in the situation of serving a prison term".
CCHR President Ou Virak comments:
"Despite recent resolutions from the European Parliament, the United States State Department and the Australian Senate requesting that Sam Rainsy be allowed to take part in the election, the Cambodian government seems determined to exclude him from participating at any cost. Not content with bringing politically motivated charges against him, the CPP-dominated NEC is now applying the law tactically as insurance against Sam Rainsy being allowed back from exile and his criminal charges being dropped. In other words, the government can now afford to do that if it wants because it is too late to register him. It's therefore looking increasingly likely that Cambodians will be deprived of a free, fair and well-fought election campaign with a strong and healthy opposition."
Download the legal analysis:
Cambodia_CCHR_legal_analysis_Sam_Rainsy_charges_Feb2011.pdf (1032 KB)