Last summer, I was afforded the privilege to work as a legal fellow for a public interest law firm in Phnom Penh, Cambodia. The law firm, Vishnu Law Group, was chosen as a sub-grantee for a US government project focused on creating lasting resolution and grievance mechanisms regarding land disputes. Simultaneously, the United Nations Development Program has hired Vishnu Law Group to work alongside and advise the Cambodian government’s Ministry of Environment (MOE) in drafting the country’s first-ever Environmental Code (hereinafter “the Code”).
Current drafts of the Code, available on Vishnu’s website, suggest not only marked improvements in Cambodia’s environmental protection and natural resource management efforts, but also effectively incorporate land resolution ordinances that would dually benefit the US government-funded land resolution project. Specifically, one chapter within the Code decentralizes the power to monitor and oversee protected forest areas. Since the national offices of the MOE are understaffed and current power dynamics disproportionately empower corrupt provincial officials, the Code directs that municipalities will exercise control via a method of community forest governance called co-management. Even more encouraging, the MOE sponsored a series of National Workshops on the drafting of the Code, where representatives from relevant government ministries, members of the private sector, NGOs, and members of civil society were invited to share their input on the legislative process.
The international community has consistently berated Cambodia’s government for its lack of attention to political freedom. Despite ratifying core international political rights treaties, namely the International Covenant on Civil and Political Rights (ICCPR) and Convention for the Protection of All Persons from Enforced Disappearance (CED), periodic reviews under these treaties have shown Cambodia’s compliance with its obligations to be rather poor. Such a track record begs the question: what circumstances led to the Cambodian government’s endorsement of a Code that, on its face, greatly increases transparency and public participation?
The short answer is: for political reasons. Because the Code contains commune-friendly programs such as co-management, the incumbent Cambodian People’s Party (CPP) wants to have the law finished and passed ahead of commune-level elections in June of this year and the national election in 2018. In the past, however, regardless of how unfair the elections were, the CPP was reelected term after term without feeling any urgency to plan reform of this magnitude. Yet, in the 2013 National elections, the CPP received undoubtedly their biggest scare to date when the opposition Cambodia National Rescue Party (CRNP) came two seats away from winning a majority of the parliamentary seats and, thus, what would have amounted to control of the government. The difference now is that increased digital connectivity amongst Cambodia’s younger generations has helped establish an educated and politically active populace. Online platforms like Facebook have created safe spaces to share news and express opinions that are generally safe from the government’s scrutiny. No story better represents this than the assassination of longtime activist and government critic Kem Ley.
This past July, Mr. Ley was shot in broad daylight on a Sunday morning while at a petrol station just south of Phnom Penh’s central Boeung Keng Kang district. Cambodian authorities charged former soldier Oueth Ang with the killing and released a confession video which Mr. Ang purportedly published online roughly thirty minutes after the murder. Both Mr. Ang’s statements in the video and government officials’ statements attribute Ley’s murder to outstanding debts he owed to Mr. Ang. However, many Cambodians and members of the international community are puzzled as to why authorities have not released CCTV footage from the petrol station and express concerns that the killing was politically motivated. The fact that Mr. Ang had no prior proven relationship with Ley and was purported to be rather poor made it highly unlikely the former soldier could have lent out several thousands of dollars to Ley in the first place. This fear reflects the fact that persecution, and even killings, of those opposing the CPP has transformed from a string of isolated incidents into a rather predictable trend in recent years. The United Nations Office of the High Commissioner of Human Rights (OHCHR), the UN Special Rapporteur on the Situation of Human Rights in Cambodia, the U.S. Department of State, and Human Rights Watch all expressed grave concerns about the circumstances of the murder. Ley’s funeral, a procession from Phnom Penh to Ley’s home in the countryside, was attended by over two million people, who stood in solidarity with the slain activist.
Collective mourning for Kem Ley was possible in part thanks to increasing technological capabilities in Cambodia. The use of social media and smartphones, no longer amenities for just the political elite, is becoming widespread in the country. According to a recent Asia Foundation survey on mobile phone and Internet usage, the number of smartphones has jumped by forty-one percent since 2014, a third of Cambodians have access to the Internet, and nearly ninety-four percent of Cambodians own some sort of mobile phone. Cambodian digital marketing firm Digital Media Vein reported that as of 2015, there are 2.9 million Facebook users in Cambodia, a seventy percent increase from 1.7 million in 2014.
Social media is quickly becoming an effective channel for freedom of expression in Cambodia. Though a Cambodian court sentenced university student Kong Raya in March 2016 to two years in prison for his anti-government remarks on Facebook, it is the only such conviction to date. Following Kem Ley’s death, multiple news organizations rushed to the scene of the crime and began broadcasting live over Facebook. The live broadcast by Social Breaking News-SBN was viewed by over a million people. Similarly, masses of Facebook users flocked to popular activist But Buntenh’s Facebook page to piece together the beatings of two opposition lawmakers last year in a way that would not depend on official CPP news sources.
The new connectivity of Cambodian people means that actions taken by the thirty-year incumbent ruler, Hun Sen, and the CPP face increasing scrutiny, not only from a newly empowered Cambodian civil society but also from the international community. Case in point: Kem Ley’s murder has been added to a complaint in the International Criminal Court (ICC), pending since 2014 against Cambodia’s ruling elite for actions related to government land confiscations and political persecution. Though the ICC’s investigation is still in its early stages, Richard Rogers, a partner at Global Diligence (the London-based law firm that filed the complaint), stated that the ICC prosecutor will likely file charges if political persecution continues. Kem Ley’s murder corroborates the argument that violent persecution is, in fact, a trend. Additionally, in a statement on behalf of thirty-nine nations, the United States Representative to the UN Human Rights Council expressed concern about the “current escalation of political tensions in Cambodia, which threatens legitimate activities by opposition parties and human rights NGOs.” The statement called on Hun Sen and the Cambodian government to make the utmost effort to improve the political environment so that all civil society can function freely.
The question now becomes whether and how the explosion of digital platforms for news and expression in Cambodia will impact the stability of the ruling CPP in national and local elections. In the 2013 National Assembly elections, the CPP captured sixty-eight of 123 seats—the ruling party’s worst showing since 1998. The opposition CNRP won the other fifty-five seats. However, the National Election Committee (NEC) reported irregularities on voter rolls: more than 250,000 names were duplicates and 290,000 were missing. Thus, the CNRP argued it had won sixty-three seats and petitioned Parliament, to no avail, to open an independent investigation. Human Rights Watch also published an investigative report finding that the CPP “orchestrated vote fraud” to win the election. All fifty-five CNRP members refused to take their seats for over a year in protest of the results. The protest ended when the two parties reached an agreement in July 2014. The agreement created a new NEC with members appointed by both parties, and even gave the CNRP a minority leader in Parliament. CNRP leader Sam Rainsy, currently in France under self-imposed exile, posted on his Facebook page that he feels that the changes will allow his party to claim at least sixty-two seats in the next election, so that the CNRP can finally have a real voice in the governance of Cambodia. Despite being away from the country, Rainsy has been able to campaign quite effectively through his Facebook page, where he posts news and live streams of events around the country. As of January 2017, Rainsy’s Facebook page is followed by 3.6 million people and, since June, has been growing at a rate of roughly 100,000 followers per month. His campaign team has even set up a “Sam Rainsy” mobile phone application in which supporters can follow CNRP news and even contact Rainsy directly. Hun Sen took notice of Rainsy’s activities on Facebook and has openly expressed his dismay for his opponents growing Facebook following. Yet, in trying to amass his own digital support base, the current prime minister has been accused of purchasing “likes,” as evidenced by the fact that the majority of Hun Sen’s Facebook followers come from accounts in foreign countries, namely India and the Philippines.
Though the next Cambodian general election is not until July 2018, both parties have begun preparing for the fast-approaching June 2017 commune council elections. The communes are the third-level administrative divisions in the rural areas of Cambodia (under the provincial and national bureaus). Commune council members and commune chiefs (who chair the councils) are required to be affiliated with, and run under, an approved political party. In the last commune-level elections in 2012, the CPP won seventy-five percent of approximately 11,000 council seats. An estimated eighty percent of all Cambodians live in rural areas; thus, policies benefitting this population have become a priority for the CPP. “Patronage networks” to the rural areas are well-chronicled: schools and monasteries are strategically built to buy votes just before national and commune elections.
The Environmental Code is shaping up to be one of those policies that matters to the rural population. For instance, one provision tackles the nation’s longstanding issue of land ownership. The problem dates back to the genocidal regime of Pol Pot and the Khmer Rouge in the late 1970s, when all property records were destroyed and existing land ownership rights were invalidated. All property was owned by the state, which relocated or executed the previous owners, as well as experts in land administration and management.
After the fall of the Khmer Rouge, the government developed grievance and conflict resolution mechanisms, such as the Cadastral Conflict Resolution System, established by the 2001 Land Law. Yet, World Bank audits of these resolution mechanisms conducted in 2006 reported multiple instances of undue political influence in cases involving high-ranking officials; as a result, many of these cases remain unresolved. Perhaps most concerning, however, is that the 2001 Land Law authorized the government to sell large parcels of protected land to domestic and foreign investors via Economic Land Concessions (ELCs), despite the fact that ownership of large tracts of this land is still contested. The Ministry of Agriculture, Forestry, and Fisheries (MAFF) reviews all proposals put forth by private companies and requires the completion of Social and Environmental Impact Assessment Studies (SEIAs), public consultations with the citizens and communities impacted by the project, and adequate compensation to those affected, if a concession is granted. However, multiple investigations revealed that MAFF approved numerous incomplete or falsified impact assessments when granting ELCs. Should the current draft of the Environmental Code be passed by the Cambodian National Assembly, much responsibility for monitoring protected forest areas and reviewing SEIA procedures would be re-allocated from national ministries like MAFF and MOE to commune-level governments.
During a visit this past October, UN Special Rapporteur on the situation of human rights in Cambodia, Rhona Smith, said that the time for the government to blame its troubles on preceding governments is surely over. Smith called on the government to respect current legislation and draft new legislation to uphold the rights and freedoms afforded under the treaties it has ratified. Should the Environmental Code be passed and upheld, it would be a step in the right direction toward Smith’s appeal to the Cambodian government. Vishnu Law Group attorney Brian Rohan noted that while there are still issues to be ironed out in the current draft of the Code, there is much to be optimistic about. Namely, Rohan pointed to the fact that the Code is the first piece of environmental law in Cambodia that encompasses “real rights and responsibilities for those [who] are most deeply connected to the land.” While passage of the Code could temporarily assuage or lessen criticism from the UN and international community, the legislation’s popularity in Cambodia’s rural areas is of most concern for Hun Sen and the CPP. The extent to which the Code will fortify CPP allegiances in these rural areas is still unknown. Should the party repeat its 2012 success in this year’s commune-level elections, Hun Sen and his party compatriots in Phnom Penh are hoping to build on a new wave of CPP commune leaders to mobilize additional support amongst their constituents in the 2018 national elections. Given the unprecedented dissemination of opposition information regarding Kem Ley’s murder and the CNRP’s opinions over digital platforms, especially Facebook, the CPP’s future is uncertain. Since Hun Sen has ordered all police, immigration, aviation authorities to ‘use all ways and means’ to prevent Rainsy from returning from exile, social media and an occasional op-ed in the local papers are the only channels Rainsy has to connect with Cambodians. Though the CNRP are still restricted from creating radio or TV stations, will the persistent growth of social media catapult Sam Rainsy and the CNRP into Cambodia’s first opposition-led government in the modern era? Only time will tell, but such uncertainty is nothing new in Cambodia, a nation in transition.