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The rule of law: recent thoughts from afar

The rule of law: recent thoughts from afar

Ira Dassa lived in Phnom Penh from 1994-1998. Among other

things, he worked for 21 months as a Legislative Advisor to the First Legislature

of the National Assembly.

The following is a smorgasbord of recent thoughts and observations on something the

Prime Minister maintains the Royal Government is working hard to establish throughout

the Kingdom of Cambodia: the rule of law.

1. The toxic waste matter in Sihanoukville.

The President of the import-export company that arranged for the importation of the

Formosa Plastics waste has been in pre-trial custody since late December. The Sihanoukville

municipal court prosecutor has charged him with causing danger to life, property

and the environment under Article 22 of the Law on Environmental Protection and Natural

Resource Management. According to various news reports, two customs officials and

a port inspector were similarly charged in mid-February. (Apparently, the three officials

were then granted pre-trial release. Kim Sen and Meas Minear of Licadho, by comparison,

were denied pre-trial release by the Sihanoukville municipal court several weeks


The first point I wish to make regarding this sordid affair is one I have made before

- importation of hazardous waste into Cambodia, while deplorable, is not illegal

under the Law on Environmental Protection. Absolutely no industrial practices, in

fact, are proscribed under the environmental law. Although two of its purposes are

(1) "to protect [and] promote environmental quality and public health through

the prevention, reduction and control of pollution," and (2) "to suppress

any acts that cause harm to the environment," the law itself contains no pollution

standards and no prohibitions whatsoever. Article 13 calls for the issuance of one

or more sub-decrees on "the prevention, reduction and control of . . . land

pollution . . . as well as waste, toxic substances and hazardous substances,"

but as of mid-December 1998, no such sub-decrees had been issued by the Council of

Ministers. As anyone who understands the rule of law knows, if something is not prohibited

by law, then it is legal. (Under the Constitution, verbal pronouncements by Hun Sen,

(for example, "waste imports are disallowed"), cannot render something


Since importation and land disposal of hazardous waste were not at the time (and

still are not) illegal under the environmental law or an implementing sub-decree,

there is no basis for charging anyone in the Sihanoukville case with causing danger

to life, property and the environment. That's because Article 22 is predicated on

there having been, at the very least, a violation of the environmental law or a related

sub-decree: "if the commission of a violation causes danger to physical bodies

or human life, to private property, to public property, to the environment [or] to

natural resources, [the violator] shall be fined from 10 million riel to 50 million

riel or imprisoned from one year to five years, or both. . . ." Unquestionably,

the importation and subsequent disposal of the Formosa Plastics waste caused serious

danger to people, property and the environment. But because the importation and disposal

were not violations of the environmental law or an implementing/Article 13 sub-decree,

the charges under Article 22 are improper and should be dropped.

Without any further delay, the National Assembly (via a simple amendment to the environmental

law) or the Council of Ministers (via issuance of an Article 13 sub-decree) should

act to fill the legal loophole that this episode has brought to light. (Cambodia

also should become a party to the [Basel] Convention on the Control of Transboundary

Movements of Hazardous Wastes and Their Disposal immediately.) It is extremely distressing

that certain companies and individuals "took advantage" of this environmental

law loophole. Ultimately, though, in a country where power and guns reign supreme,

indeed in any country, law enforcement authorities cannot be allowed to make up law

where none exists.

My second point concerning the toxic waste matter is equally disconcerting: where

are the corruption and bribery charges? Multilateral and bilateral donors, please

take note - charges under Articles 38 (corruption) and 58 (bribery) of the UNTAC

Criminal Provisions apparently are not warranted against anyone. That is, money was

neither sought nor offered, and none changed hands in this entire affair. How can

anyone possibly believe that the Royal Government is serious about combating corruption?

Consider this: during the almost seven years that the UNTAC Criminal Provisions have

been in effect, it appears there has never been a single prosecution under Article

38 or 58. Query whether there will ever be one.

2. Due process and bringing Khmer Rouge leaders to justice.

Several weeks ago, the Sam Rainsy Party correctly observed that Articles 14 and 21

of the UNTAC Criminal Provisions, under which an accused person in pre-trial detention

must be brought to trial no later than six months after his/her arrest, had once

again been violated, this time in the high-profile case of Nuon Paet, the notorious

Khmer Rouge general arrested last August. The international community's reaction

was hardly a vociferous one, much less one grounded in respect for basic due process.

This leads to the following question: now that Hun Sen has reversed course vis-a-vis

foreign judges and prosecutors participating in the trial of Ta Mok (and other Khmer

Rouge leaders?), how is the international community going to react if and when the

six-month time limit is violated yet again? Keep in mind that Hun Sen has insisted

that Ta Mok (and any others) be tried in a Cambodian court under Cambodian law, that

the details on foreign participation (amendments to existing law, etc.) probably

would take a considerable amount of time to sort out, and that Ta Mok has been in

pre-trial detention for almost two months already.

3. Upcoming admission into ASEAN.

Cambodia is due to become a full-fledged member of the Association of Southeast Asian

Nations on April 30th. As I understand it, the Prime Minister or Foreign Minister

will sign two separate documents at the admission ceremony in Hanoi: (1) a declaration

of Cambodia's admission; and (2) a protocol of accession. The latter document will

formally declare Cambodia's accession to a host of ASEAN treaties. Unfortunately,

it appears that the National Assembly (and now also the Senate) will not have approved

the various treaties in advance in accordance with Articles 26 and 90 of the amended

Constitution. (Nor is the protocol going to be signed by the King as required under

Article 26.)

If signed as anticipated, the protocol of accession will become just another in a

long list of constitutional transgressions by the Royal Government. And once again,

the National Assembly's role as set forth in the Constitution will have been denigrated.

4. The Senate.

So Cambodia now has a Senate to "facilitate work between the National Assembly

and the government" (Article 112 of the amended Constitution). Can someone please

tell me what that means?

5. Impunity.

As Thomas Hammarberg's recent report to the U.N. Commission on Human Rights points

out (for the umpteenth time), one rule certainly is alive and well in Cambodia -

the rule of law impunity.

6. The SRP's question of the week.

And finally, how shameful and disturbing it is that the diplomatic community has

been so mute about the Royal Government's complete and total disregard for the parliamentary

opposition's so-called question of the week. (I'm reminded of Benny Widyono's, [formerly

the U.N. Secretary-General's Representative in Cambodia], non-attendance at the Khmer

Nation Party's opening ceremony in 1996.) Last time I checked, Article 96 of the

amended Constitution reads exactly as the SRP says it does: MPs have the right to

pose questions to the Royal Government, and questions must be answered within seven

days. Of course, this is the same diplomatic community that just a few months ago

was urging that the SRP not be included in the new coalition government. Let the

SRP function as a parliamentary opposition, the diplomats said. Well, they're trying

to do that . . . with their hands tied firmly behind their backs!


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