Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

Other comments on C105

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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. Noting that penalties of imprisonment involve an obligation to work pursuant to section 68 of the Act on Prisons of 2011, the Committee previously referred to a number of provisions of the national legislation providing for penalties of imprisonment for certain activities, which fall within the scope of Article 1(a) of the Convention and thus have a bearing on the application of the Convention. The Committee expressed 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 deplored the imprisonment (involving compulsory prison labour) of members of the Cambodia National Rescue Party (CNRP), which was dissolved in November 2017.

The Committee requested the Government to review the following provisions of the national legislation and urged the Government to ensure that no penalties involving compulsory labour may be imposed pursuant to these provisions on persons who express political views or views opposed to the established political, economic or social system:

(i)section 42 of the Act on Political Parties, as amended in 2017, according to which 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;
(ii)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 of the Penal Code of 2009;
(iii)sections 305-309 on public defamation and insult; and
(iv)provisions of the Penal Code relating to insult and criticism of the King (section 445 and section 437 bis introduced in 2018).

The Government indicates in its report that the freedom of citizens to express themselves peacefully and to engage in politics is guaranteed by national legislation. It states that any citizen can freely support any political party without being discriminated against, except in the case of the commission of criminal offences. It points out that the Government has no power to dissolve a political party; only the Supreme Court has the authority to do so. In addition, it states that section 42 of the Act on Political Parties as amended provides a precise definition regarding the penalty for any person who “continues to administer or lead a political party that the Supreme Court has finally dissolved”. It adds that criticizing the letters and judgements of the Court with the aim of causing disorder or jeopardising the institutions of the Cambodian Government and disrespecting the Court’s judgement is deemed a criminal offence according to the Penal Code. Regarding the Cybercrime Act, the Government indicates that the adoption of the draft Act has been postponed due to the COVID-19 pandemic and that discussions on the draft Act are still ongoing.

The Committee notes that, in its concluding observations of 2022, the United Nations Human Rights Committee expressed concern over: (i) the persistent violation of the freedom of expression, including through reports of the closure of media outlets, the blockage of websites critical of the Government, and the use of criminal legal actions against journalists and human rights defenders; (ii) the arrest and detention of protesters; (iii) the dissolution of the CNRP in 2017 and of three other opposition parties in 2021; (iv) threats, harassment, arbitrary arrests and mass trials targeting members of the opposition; and (v) the persistent lack of an independent and impartial judiciary (CCPR/C/KHM/CO/3, paragraphs 20, 32, 34, 36 and 38). In this regard, the Committee also notes the information from a news release of 29 June 2022 from a number of United Nations experts according to which at least 43 defendants, who were linked to the CNRP, were convicted in June 2022 at a mass trial on charges of plotting and incitement, and sentenced to penalties of up to eight years’ imprisonment. The United Nations experts highlighted the existence of judicial flaws in these political trials and the lack of solid evidence supporting the charges.

The Committee further notes the concern of the United Nations human rights experts, in a statement of 24 August 2021, regarding sections 494 and 495 of the Penal Code, which are being used systematically to target and convict human rights defenders. In addition, the Special Rapporteur on the situation of human rights in Cambodia underlined, in a press release of 6 October 2021, intolerance towards online criticism of the COVID-19 response, which had led to several arrests and prosecutions, 25 human rights defenders imprisoned, nine opposition political figures sentenced to up to 25 years, and 50 reported instances of harassment of journalists in 2021.

The Committee deeply deplores the continued use of the provisions of the national legislation to arrest, prosecute and convict human rights defenders, opposition members and journalists who express political views or views ideologically opposed to the established political, social or economic system, leading to the imposition of penalties of imprisonment which involve compulsory prison labour. The Committee recalls that although some convictions have been made in accordance with the law of the State, they may fall within the scope of the Convention and thus be contrary to the Convention in so far as they allow persons holding or expressing political or ideological views to be compelled to work. The Committee emphasizes that limitations may be imposed by law on the rights and freedoms of expression which must be accepted as normal safeguards against their abuse (for example the purpose of securing due recognition and respect for the rights and freedoms of others or meeting the just requirements of public order). However, these limitations must meet strict standards of scrutiny regarding their justification and scope and the offences established in the legislation for that purpose should not be defined in such wide or general terms or applied by the judiciary in a way that they will lead to the imposition of penalties involving compulsory labour as a punishment for the expression of political or ideological views (see 2012 General Survey on the fundamental Conventions, paragraphs 302–304).

The Committee strongly urges the Government to take immediate and effective measures to ensure that persons who express political views or views opposed to the established system, including that of opposition members, human rights defenders and journalists, are not punished with penal sanctions involving compulsory labour, including compulsory prison labour. It urges the Government to review the wording of section 42 of the Act on Political Parties as well as sections 445, 437 bis, 494, 495, 522 and 523 of the Penal Code, 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, so as to ensure that their application in practice does not lead to the violation of the Convention. The Committee also requests the Government to provide training to law enforcement bodies in this regard. The Committee once again requests the Government to provide a copy of the amendments to the Penal Code in 2018 which criminalize criticism of the King, as well as information on the practical application of the above-mentioned provisions of the Penal Code and the Act on Political Parties, including the facts that gave rise to the convictions and the nature of the sanctions imposed. The Committee expresses the firm hope that the Cybercrime Bill will be drafted and applied taking into account the principles evoked above and the obligations of the Government under the Convention.

Article 1(d) of the Convention. Punishment for participation in strikes. The Committee previously noted from the observations of the International Trade Union Confederation (ITUC) that Van Narong and Pel Voeun, two members of the Cambodian Labour Confederation (CLC), were sentenced to imprisonment for misdemeanour and malicious defamation under sections 311 and 312 of the Penal Code after taking part in a protest following the dismissal of union members and after filing a complaint against two workers for violence. It also noted the arrest and prosecution of four leaders of the Workers Friendship Union Federation for having organized an illegal strike, blocking traffic and disturbing public order. The Committee requested the Government to indicate the legislative provisions and factual arguments on the basis of which the above-mentioned individuals were arrested and prosecuted.

The Government indicates that Van Narong and Pel Voeun were convicted for misdemeanour and malicious defamation, and that their allegations of violence were fictitious. Regarding the arrest and prosecution of the four leaders of the Workers Friendship Union Federation, the Government indicates that it will update the Committee on any developments in this case. The Government also points out that individuals are prosecuted for the offences they have committed and that trade unionists do not enjoy any privilege of impunity.

The Committee notes that in a press release of 5 January 2022, a number of United Nations human rights experts referred to the arrest and detention of at least 29 casino union leaders and activists during a strike, out of which nine have so far been charged with incitement to commit a felony, under sections 494 and 495 of the Penal Code, and remain in custody while the others have been released. The Committee further notes the concerns expressed by United Nations experts in a press release of 16 February 2022 regarding the measures taken under COVID-19 used to impose restrictions on lawful and peaceful strikers. The United Nations experts deemed these restrictions to be unjustified, unnecessary and disproportionate.

The Committee urges the Government to take the necessary measures to ensure that the application of legislative provisions will not lead in practice to the imposition of sanctions involving compulsory labour (such as compulsory prison labour) on workers for the mere fact of organizing or peacefully participating in strikes, in conformity with Article 1(d) of the Convention. The Committee requests the Government to provide information on the progress made in this regard. The Committee also requests the Government to provide a copy of the court decision regarding the four leaders of the above-mentioned Workers Friendship Union Federation.

In light of the situation described above, the Committee is bound to observe that there has been no progress with regard to protecting freedom of expression in Cambodia and that opposition political activists, journalists, human rights defenders and social media activists who express dissent or criticism of the authorities are convicted and imprisoned under various provisions of the national legislation, including the Penal Code. The Committee deeply deplores the continued use of the provisions of the national legislation, including the Penal Code, to prosecute and convict persons who express their political views or views ideologically opposed to the established political, social or economic system, leading to penalties of imprisonment involving compulsory prison labour. The Committee considers that this case meets the criteria set out in paragraph 114 of its General Report to be asked to come before the Conference.

[The Government is asked to supply full particulars to the Conference at its 111th Session and to reply in full to the present comments in 2023.]