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
earlier.)
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
illegal.)
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!
