The government's anti-trafficking department is starting to
catch the bad guys but all too often they slip thruogh the legal net, NGOs say. In
part 3 of his series on human trafficking, Liam Cochrane writes about policing and
the law in Cambodia.
Like so many girls in so many brothels around Cambodia, the 12-year old found with
a 54-year old Japanese man during a police raid last November was Vietnamese and
had been lured into the sex industry.
The case seemed straightforward to Afesip, the NGO which became the girl's temporary
guardian after the rescue.
General Un Sokunthea, head of the government's Anti-Human Trafficking and Juvenile Protection Department is a no-nonsense woman charged with stopping the human trafficking industry.
Kanae Masata was caught alone with the girl in the notorious brothel district of
Svay Pak, also known as K11 because of its distance from Phnom Penh, and police confiscated
a camera containing footage of him having sex with five different girls who appear
well below 15, the legal age of consent.
While Masata was charged with the child-sex crime of debauchery and was not accused
of trafficking, paying customers are the ultimate reason sex trafficking takes place.
Months later Afesip's legal advisor, Aarti Kapoor, would tell journalists that despite
the overwhelming evidence, the case would again illustrate the pliability of the
Cambodian legal system and the lack of justice for victims.
But a successful arrest is in itself cause for celebration among police and international
organizations working to improve Cambodia's reputation as a source, transit and sending
country for human trafficking.
From May 2002 to the start of this year, the Ministry of Interior (MoI) Anti-Human
Trafficking and Juvenile Protection Department has made 70 trafficking arrests, leading
to 22 convictions so far, says Director-General Un Sokunthea.
Most of those arrests were of relatively small-time players, Sokunthea admits, but
a rare and encouraging exception was the sacking and imprisonment of a police major
(working outside the department) a year ago for his role playing bong thom or "big
brother" to traffickers and brothel owners in Svay Pak.
Human trafficking is made possible by corrupt officials who allow borders to be crossed
and paperwork fudged, and human rights groups claim this corruption goes disturbingly
high up the chain of command.
But not everyone is on the take, and Sokunthea says that while it's difficult to
be 100 per cent free of corruption, she is committed to keeping her team clean.
"Until now I'm very proud to never have been accused by an NGO or from the public,
because since the establishment of this department there has been no corruption,
said Sokunthea through a translator on April 22.
The department is supported by Unicef, with additional help from World Vision and
the International Organization for Migration, and receives funding from the government
of the Netherlands.
Christian Guth is a law enforcement advisor to the 150-strong department and says
it is crucial that Cambodia devotes specialized attention to the growing problems
of sexual assault and trafficking.
"It's important because these people have no other tasks than this," says
Guth.
"Interviewing an offender who has stolen a motorbike ... is not the same as
interviewing a child victim who has been raped or sexually exploited. There's some
special training and special knowledge [needed]."
While the Phnom Penh department has national jurisdiction, many cases of trafficking
and child sex offenses occur outside the capital, so the MoI set up bureaus in six
key provinces: Kandal, Kampong Cham, Sihanoukville, Siem Reap, Battambang and Banteay
Meanchey.
With the majority of the victims of trafficking and sexual assault being women and
girls, the department and its bureaus have tried to strike some kind of gender balance
and Guth says eight at the 15-strong bureau in Banteay Meanchey are women. Across
the bureaus the average is closer to 20 per cent, he says.
"During the recent past the women haven't had the opportunity ... so if we want
women to play a main role in the police force it will take time," said General
Sokunthea, who also heads up the MoI's Gender Action Group.
In a December 2003 speech, Minister of Interior Sar Kheng said sexual expolitation
and trafficking was a priority for the government and hailed the formation of the
department as "a good example of the concrete action" taken by his ministry
to protect women and children.
He also called on provincial governors to give clear instructions to their staff
that victims deserve support and the opportunity to file a complaint against offenders.
Sokunthea says the nationalities of those arrested roughly reflects those involved
in Cambodia's trafficking industry, with approximately 60 percent Vietnamese, 30
percent Khmer and a minority of other nationalities.
Statistical breakdowns such as this shape the way police fight the rising tide of
trafficking and the department is in the process of implementing a database system
to record incidents of sexual assault and trafficking as well as help to manage the
cases the team is working on.
While Christian Guth describes the database primarily as a "specialized criminal
filing system" he says it does have the potential to lead to a blacklist stopping
known offenders from entering Cambodia.
But even with more information and a sizable force dedicated to the issue of trafficking,
police must battle a cumbersome legal system that is prone to corruption and allows
many offenders to walk free, say NGO workers.
Human trafficking is currently covered by a brief 1996 law that focuses heavily on
kidnapping with imprecise definitions that police, lawyers and NGOs alike say leave
loopholes for offenders.
But a new draft law is in the pipeline, re-written by Japanese lawyer Yoichi Yamada.
After finishing a stint with an NGO, Yamada made a personal proposal to the Ministry
of Justice to patch the gaping hole in Cambodia's law and was later backed by Unicef.
By August 2002 his first version was ready for feedback and with input from stakeholders
it was expanded to a 52-article draft submitted for official consideration a year
ago.
But like so much of Cambodia's legal reform, it has been held up by the long-running
political deadlock. However, Yamada says this delay could actually prove helpful.
"What I wanted by drafting the law was to provide a draft to trigger discussion
and deliberation on the legislation by Cambodian people themselves," said Yamada
in an April 20 email from Japan.
"I would be really happy to see my draft discussed or even substantially modified
or replaced with a better alternative."
Some anti-trafficking lawyers say the draft law still has "too many gaps"
and falls short of UN protocols, while others would like to see more defenses for
victims of trafficking against charges such as prostitution and illegal immigration.
But it is clear the draft is a vast improvement on existing laws, giving clearer
definitions of crimes, adding articles covering pornography and nullifying the illegal
"contracts" and "debts" that are so often used to keep women
enslaved.
Sok Sam Oeun, executive director of the Cambodian Defenders Project, oversees a three-person
trafficking division that sees about 30 cases a year.
Oeun says that even under the 1996 law, his organization has a "very high"
success rate in cases when the victim cooperates with lawyers. But many girls choose
not to go to court; their reasons are numerous and complex.
One 18-year old interviewed at an Afesip shelter in Phnom Penh said she spent two
years in brothels after her aunt sold her at 16.
"People who run brothels should be arrested," she said. "But not my
aunt."
She only escaped after her aunt became angry with the brothel owner for not paying
enough money and so the aunt told the police, who raided the brothel.
Family loyalty and a sense of just wanting to put their experience in the past was
common among the girls interviewed by the Post. They also expressed a feeling that
the court system would not help them.
"I'm angry at those who run brothels and I want them imprisoned but in Cambodia
if you have money you can escape," said the 18-year old, who asked not to be
named.
Sok Sam Oeun says the fear of consequences from testifying against powerful criminals
is another reason victims are reluctant to take their complaints to court.
But Oeun points out that lawyers are only the final step on the path to a trafficking
conviction.
First the police must make an arrest, working with the 1992 UNTAC code on criminal
procedure, described as a bad copy of the French system by several sources working
in anti-trafficking.
Just one quirk of the criminal procedure is that in cases where the suspect is not
"flagrante delicto" or caught in the act, police must obtain a search warrant
and conduct their search between 6am and 6pm, not always practical when investigating
an industry that doesn't always keep regular business hours.
Once a suspect has been detained, the investigating judge has a pre-trial detention
period of up to six months to gather evidence and establish the facts of the case.
Much to the frustration of NGOs such as Afesip, a thorough investigation does not
always happen and the long pre-trial detention allows plenty of time for an out of
court settlement or judicial corruption to take place.
Afeseip says that such was the case with the Japanese man, Kanae Masata.
In early 2004, Afesip was told by one of their trusted sources that Masata's lawyer
laid $10,000 cash on the table of a senior policeman involved with the case, who
secretly filmed the bribe attempt.
The lawyer was arrested but later released after allegedly threatening to use his
influence with the Cambodia Bar Association to damage the policeman's career, said
Afesip.
The Post could not independently confirm the allegation and the police officer involved
would not provide footage of the alleged bribe, but Pierre Legros, Afesip's regional
co-ordinator, says there is no doubt that bribes of between $10,000 and $25,000 are
regularly made to get charges dropped.
Masata hired a new lawyer, who persuaded the Chief Prosecutor and Court President
Judge in Phnom Penh to release the suspect on March 23 for health reasons, with a
$5,000 bail.
The court order said that Masata didn't know the girl's age and criticized the 12-year-old
because "while having sex she did not tell the man how old she was".
A spokesperson for the Japanese Embassy said on May 4 that Masata was still in Phnom
Penh awaiting trial and would not leave the country as his passport has been confiscated.
However, a trial date has not been set, exasperating Pierre Legros.
"If we can't arrest [and send to trial] a simple Japanese guy, how can we arrest
the Chinese mafia that traffics a thousand girls to Malaysia?" asked Legros.
Unfortunately, the injustice of this case doesn't stop there.
Recently, Afesip received a phone call from the 12-year old victim's mother saying
her daughter had disappeared again, thought to have been trafficked to a distant
provincial brothel.
So while the legal system grinds slowly towards reform and the police try to improve
their record of apprehending traffickers, the result of this cruel trade goes on:
one more young girl, a child, joins the thousands of others forced, lured or tricked
into the sex industry.
(Translation by Sam Rith)
