The American Bar Association has slammed the September defamation conviction of former Adhoc staffer Ny Chakrya, saying the trial was “marred by significant irregularities in violation of the right to a fair trial”.
Chakrya, who is now the deputy secretary-general of the National Election Committee, was convicted in September of allegedly defaming two Siem Reap court officials and attempting to “unlawfully coerce judicial authorities”, sentenced to six months in prison and fined 6 million riel (about $1,460) by Phnom Penh judge Khy Chhai in a case widely seen as judicial harassment of the rights group.
The case stemmed from criticisms by Chakrya – aired during a press conference – of the Siem Reap investigating judge Ky Rithy and deputy prosecutor Sok Keo Bandith for arresting two villagers in relation to a high-profile land dispute in the province.
In a trial-observation report released yesterday, the American Bar Association’s Center for Human Rights found Chakrya’s trial to be riddled with elements of procedural negligence, including the court’s apparent presumption of guilt and the absence of the complainants. Both Rithy and Keo Bandith skipped the trial, as they had an earlier hearing in July.
“Given the failure of the complaining parties to appear, it would seem reasonable to request a dismissal of the charge or in the alternative a continuance to force their attendance,” the report reads.
The report also noted that “the Prosecution in this case basically presented no evidence”, and furthermore criticised the lack of reasoning for the ruling provided by judge Chhai – who took only 15 minutes to deliberate the merits of the case.
“[Chhai] did not respond to concerns raised by the defense counsel about the failure of the prosecution to maintain its burden of proof, the right to confront witnesses or the claim the statement made by the defendant was true,” the report reads.
The report also concludes that Cambodia’s defamation statute itself is deeply flawed, and likely violates the Kingdom’s international legal obligations.
Sam Sokong, who represented Chakrya, agreed with the report’s assessment, adding that the inability to cross-examine the complainants had hurt his defence. “This was a challenge for me as a defence lawyer,” he said. “With this report, I hope the Appeal Court will organise hearings [more] carefully so that they are not criticised.”
While the “public defamation” charge on its own does not hold a prison sentence, legal expert Sok Sam Oeun said it was the frequent coupling of defamation with other serious offences – in Chakrya’s case criticism of the court – that enabled the prosecution to push for jail time.
“With only defamation, defendants will not be scared,” he said. “They [prosecution] will choose other charges so that they can send you to jail.”
With regards to Cambodia’s lethargic attempts at judicial reform, Sam Oeun said the lack of qualified legal experts at the Ministry of Justice and the government’s rigid rejection of criticisms of the court prevented any kind of change.
“The government has to understand that these reforms are needed,” he said. “But then if you criticise the judiciary, you go to jail.”
Last year, the International Bar Association released a highly critical review of the Cambodian judiciary, calling it ridden with endemic corruption, bribery and political influence.
While corruption and bribery were found at every level of the court, the report also pointed to three laws meant to regulate the judiciary passed in 2014 as having cemented the executive branch’s control over the courts.
Kingsley Abbot, senior international legal adviser at the International Commission of Jurists, said any improvements made to ensure better trial procedures were overshadowed by the government’s extended control over the judiciary.
“The real issue is the extent to which judges are able to conduct their work free from government interference, particularly in politicised cases,” he said.
Chakrya is currently in pre-trial detention for a bribery case related to opposition leader Kem Sokha’s alleged sex scandal along with his former Adhoc colleagues – Yi Soksan, Lim Mony, Ny Sokha and Nay Vanda. That case is also widely believed to be politically motivated.
Additional reporting by Niem Chheng