Analysis: Cambodia’s government learns the art of ‘lawfare’

Opposition leader Kem Sokha is escorted by police following his arrest in Phnom Penh in September. AFP

Analysis: Cambodia’s government learns the art of ‘lawfare’

 Phnom Penh Post | 9 October 2017

On Friday, all the pieces fell into place. The Ministry of Interior, a day prior, had primed the media, instructing them on how to report the day’s events. The government’s investigation and filing to the Supreme Court that called for the main opposition party to be dissolved was all done by the book. 

It was all legal, government spokesmen said. But there was never any doubt that the Cambodia National Rescue Party’s impending demise would be painstakingly bureaucratic, that it would adhere to the letter of the law. The ruling party made sure of that – they crafted the law themselves. 

The Cambodian People’s Party’s swift passage of changes to the Law on Political Parties, which make the dissolution of the CNRP a likely reality, was the latest step in Prime Minister Hun Sen’s tilt towards “lawfare” – using, and even rewriting, the law to eliminate political threats. 

The two sets of amendments to the Law on Political Parties passed the National Assembly, where the ruling party holds a majority, over the strenuous objections of civil society and the international community. The CNRP – the only other party with seats in the assembly – boycotted the votes, saying they did not want to legitimise a process that could see their party eradicated from the political arena ahead of the crucial 2018 national election. 

The Friday launch of the legal case to disband the CNRP was the fruit of that labour from eight months ago, although it also yielded immediate results in February with the forced resignation of former opposition president Sam Rainsy. His leadership was deemed illegal under the changes due to his prior criminal convictions, which are widely perceived as politically motivated.

The government itself has not minced words about its approach. 

“What [Hun Sen] wants to say is that we use legitimate power . . . and if the law still has loopholes, we will draft some laws, because when we win, we can do whatever we want,” said Social Affairs Minister Vong Soth in August, during a candid speech in which he advocated hitting protesters with bamboo rods – a message he attributed to the premier himself. 

But the law, Justice Ministry spokesman Chin Malin maintained, was “not political” and does “not target any party”, while the investigation “complied with the law”. And Interior Ministry Administration Director Prak Samoeun admonished journalists to tell their audience as much, warning them at a training session on Thursday not to try to interpret the law themselves lest they “make chaos in society”. 

He argued, seemingly counter-intuitively, that political participation now needed to be restricted to non-criminals because Cambodia had made so much progress in the last 20 years. Back then, with post-war reconciliation efforts underway, it was necessary for criminal Khmer Rouge cadre to work and live side by side with victims of the regime, he said. 

“Our Cambodia has never experienced it before because we were tolerant, but in Thailand . . . the party was dissolved, created and dissolved, and created,” he said, referring to the neighbouring nation’s single-power government under a military junta. 

In fact, the adoption of a lawfare strategy showed Cambodia was learning from other authoritarian countries, said Lee Morgenbesser, a researcher on authoritarian regimes in Southeast Asia at Australia’s Griffith University.

“Legal fixing”, he said in an email, is a manoeuvre “ripped from the playbook of more sophisticated dictatorships, such as Rwanda’s Paul Kagame and Russia’s Vladimir Putin”.

“The retrograde method of silencing opposition leaders is to jail or kill them . . . Using the legal system in the way Hun Sen has allows sophisticated authoritarian regimes to show that the real problem is a lack of professionalism on the part of their opponent leaders, rather than an intolerance for dissent on the part of dictators,” he said in an email. “Unless they know precise details about the legal system, this makes it difficult for the public to discern who is at fault in the affair. Ultimately, the public is left in a state of factual relativity.”

What separates Cambodia from other majority governments that draft and pass laws is its lack of an independent court system, he said. 

“The key ingredient is a judiciary that is sympathetic to the ruling party or dictator. This means laws that are passed by an elected legislature and even appear to be legally prudent can be abused for partisan political advantage,” Morgenbesser said, citing Kem Sokha’s arrest for treason, Anwar Ibrahim’s sodomy conviction in Malaysia and JB Jeyaretnam’s prosecution for libel in Singapore as examples of such repression in the region. 

The Supreme Court’s decision on the CNRP’s existence will be final, with no opportunity for appeal.

“Hun Sen has masterminded this entire strategy from beginning to end . . . The inescapable fact is that the ‘law’ is a scalpel, but it is wielded by a dictator.”

While Morgenbesser said the legal tactics had ramped up in recent years with legislation such as the controversial Law on Associations and NGOs, Jonathan Sutton, a researcher on government repression in Southeast Asia at the University of Otago in New Zealand, said lawfare in Cambodia kicked off in the mid-2000s. 

Aside from a few notable instances, in “the mid-2000s there was a marked shift away from physical violence towards ‘lawfare’ as the weapon of choice”, Sutton said, noting a sprouting of defamation cases against critics. 

“The main benefit of this strategy is that it gives a veneer of legitimacy to political repression, particularly for outside observers,” he said in an email, adding that ordinary Cambodians would not be fooled so easily. 

Yet, he said, “in many ways eliminating the CNRP is a blow to the CPP, because having a credible opposition helps to legitimise elections and takes a lot of pressure from the international community off”, he said, adding the turn to China and the rise of Trump could be factors in the legal challenge to the opposition.

Indeed, historian David Chandler said the prime minister would prefer “the kind of elections they have in China and a Vietnam”. 

“I do not know what kind of election Hun Sen imagines unless it is like the one-party one that occurred in 1981 under PRK [People’s Republic of Kampuchea],” which was headed by a Vietnamese-backed army of Khmer Rouge defectors. “I don’t think he can manufacture a tame opposition, fearful that it could get out of hand.”

Yet there are also traces of Hun Sen employing lawfare in the late 1990s, almost hand-in-hand with physical violence. Following a bloody coup in 1997, then-First Prime Minister, Prince Ranariddh was charged with weapons smuggling and negotiating with the Khmer Rouge – despite Second Prime Minister Hun Sen and the CPP doing the same. In a seeming parallel to Ranariddh’s dilemma 20 years later, the CNRP’s Sokha has been accused of conspiring with the United States and fomenting a colour revolution.

Ranariddh, leader of royalist party Funcinpec, appears now to have come full circle: once undermined by Hun Sen’s legal tactics, he is now a participant in them. Funcinpec on Thursday filed a complaint to the Interior Ministry calling for the dissolution of the CNRP, just days after a government mouthpiece published an editorial suggesting it would take the bulk of the CNRP’s assembly seats.

Sutton highlights the different circumstances between Ranariddh and Sokha – the former theoretically held a more powerful position than Hun Sen – but he noted the 1997 fighting and charges were “extraordinary” steps taken to unseat Ranariddh. 

Over the past 20 years, “these repressive laws themselves have become more easily manipulated for political purposes”, Sutton said, noting vague terms such as “incitement” and “threats to national security” are “not adequately defined in the laws themselves” and are used “to silence opponents”. 

Sebastian Strangio, author of Hun Sen’s Cambodia, who describes incitement laws in his book as “the masterpiece of legal fuzziness”, yesterday noted a “certain element of irony” in the government strictly abiding by the law. 

“Foreign governments and NGOs and human rights groups have spent so long lecturing the Cambodian government about the importance of allowing the law to play out, and so I think that elements in the government are relishing the fact that they can throw it back in their face,” he said. 

“The law is bent to fit the political realities, not the other way around.”