CMNT_TITLE

Abolition of Forced Labour Convention, 1957 (No. 105) - Cambodia (RATIFICATION: 1999)

Previous comment

The Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2023. It also notes the observations of the International Trade Union Confederation (ITUC), received on 27 September 2023. The Committee requests the Government to provide its reply to these observations.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 111th Session, June 2023)

The Committee notes the detailed discussion that was held by the Committee on the Application of Standards (Conference Committee) at the 111th Session of the International Labour Conference (June 2023), regarding the application of the Convention by Cambodia.

The Committee notes that the Conference Committee deeply deplored the continued use of the provisions of the national legislation, including the Penal Code, to prosecute and convict persons who express their political views or views ideologically opposed to the established political, social or economic system, or to punish those who participate in strikes, leading to the imposition of penalties of imprisonment involving compulsory prison labour. The Conference Committee also noted with deep concern the arrest and imprisonment of trade unionists and others for exercising their civil liberties and expressing different political views from that of the Government. The Conference Committee urged the Government to take measures to immediately and unconditionally release, quash convictions and drop all charges brought against individuals for having expressed political views or views ideologically opposed to the established political, social or economic system, and against individuals who were punished for having participated in strikes.

Article 1(a) of the Convention. Sanctions involving the obligation to work as a punishment for the expression of political views or views ideologically opposed to the established political, social or economic system. The Committee recalls that penalties of imprisonment, which involve an obligation to work pursuant to section 68 of the Act on Prisons of 2011, might be imposed under various provisions of national legislation in circumstances falling within Article 1(a) of the Convention, including:

• section 42 of the Act on Political Parties, as amended in 2017, according to which various offences related to the administration or management of a political party which has been dissolved, or whose activities have been suspended by a court, or whose registration has been refused, are punishable with sanctions of imprisonment for a term of up to one year;
• sections 494 and 495 on incitement to disturb public security by speech, writing, picture or any audio-visual communication in public or to the public, section 522 on publication of commentaries intended to unlawfully coerce judicial authorities, and section 523 on discrediting judicial decisions of the Penal Code;
• sections 445 and 437 bis of the Penal Code, introduced in 2018, relating to insult and criticism of the King.

The Committee notes that, in line with the Committee’s previous requests, the Conference Committee urged the Government to take effective and time-bound measures to: (i) ensure that the right to hold or express political views or views ideologically opposed to the established political, social or economic system without the threat of penalties involving compulsory labour is fully respected; and to (ii) repeal or amend relevant provisions of the Penal Code and the Act on Political Parties providing for and leading to penalties of compulsory labour, in consultation with the social partners, in order to bring them into conformity with the Convention.

The Committee notes that the Government once again indicates, in its report, that Cambodian citizens are granted fundamental freedoms, including the right to express their opinions peacefully and to engage in political activities, which are enshrined in the Constitution. It adds that there are no punitive measures for individuals who peacefully express their political views, including opposition members, human rights defenders or journalists, provided that their activities remain within the legal framework and do not infringe the rights of others. The Government indicates that the legal actions taken against activists were not predicated on their exercise of human rights and social rights or their status as activists, but for having contravened specific laws, including those related to denouncement, dissemination of fake news, incitement with a view to causing civil unrest to social security, and treason, among others. All individuals subjected to legal actions are assured of due process. It adds that the legislative provisions are fundamentally designed to uphold the order, security, safety and interests and rights of all citizens. The Government further states that the Labour Law proscribes forced or compulsory labour and that prison labour is primarily a rehabilitative process aimed at facilitating the reintegration of prisoners into society, and is not assigned based on political opposition, human rights advocacy or journalistic activity.

The Committee notes that in its observations, the ITUC deplores the current and long-standing climate of repression in Cambodia, which is not conducive to the exercise of public freedoms, including freedom of association and freedom of collective action, particularly in view of the arrests and prosecutions of opposition party members, representatives of non-governmental organizations, trade unionists and human rights defenders. It states that the above-mentioned legal provisions are used to imprison and convict political dissidents, journalists, bloggers and trade unionists, who may be subject to an obligation to work. The ITUC stresses that a thorough review of these legal provisions and of the practices of the country in the field of the enforcement of criminal law is essential.

The Committee also notes that, in its observations, the IOE reiterates the statements of the Employer members during the Conference Committee discussion and expresses the hope that progress would be made in the application of the Convention in line with the Conference Committee’s conclusions and in close consultation with the most representative employer organization in Cambodia.

The Committee further notes that, in its report of 20 July 2023, the United Nations Special Rapporteur on the situation of human rights in Cambodia indicates that he has continually received reports of attacks, unjustified arrests and prosecutions of human rights defenders, journalists and media personnel, political dissidents and others seen as being opponents of the authorities. He states that at the beginning of 2023, dozens of human rights defenders and environmentalists were estimated to be in detention, and that there was a rise in those numbers as compared with the previous year. The Special Rapporteur also refers to four mass trials between March 2021 and December 2022, mainly against members of the former Cambodia National Rescue Party (CNRP), under charges including incitement (sections 494 and 495 of the Penal Code), plotting (section 453), and conspiracy with a foreign power (section 443), resulting in a number of penalties of imprisonment (A/HRC/54/75, 20 July 2023).

The Committee therefore once again deeply deplores the continued use of various provisions of the national legislation to prosecute and convict opposition members, human rights defenders and journalists as a result of their work, leading to the imposition of sentences of imprisonment that entail compulsory prison labour. The Committee strongly urges the Government to take immediate and effective measures, both in law and practice, to put an end to any violation of the Convention, by ensuring that no one who expresses political opinions or views ideologically opposed to the established political, social or economic system, including opposition members, human rights defenders and journalists can be sentenced to imprisonment, under the terms of which compulsory labour is imposed. The Committee once again urges the Government to amend section 42 of the Act on Political Parties and sections 437 bis, 445, 494, 495, 522 and 523 of the Penal Code by clearly restricting the scope of these provisions to situations connected with the use of violence or incitement to violence, or by repealing sanctions involving compulsory labour (compulsory prison labour). Lastly, the Committee urges the Government to ensure the immediate release of any person convicted to a prison sentence entailing compulsory prison labour, for peacefully expressing political views or opposing the established political, social or economic system.

Concerning the Cybercrime Bill, the Committee notes the Government’s statement in the written information provided to the Conference Committee that a dedicated working group has convened a review meeting and that a collaborative process has facilitated the advancement of this initiative. The Cybercrime Bill is under deliberation with all relevant stakeholders, with a concerted effort being made to integrate and harmonize input from all parties to ensure the law effectiveness, efficiency, pertinence, and coherence. The Committee expresses the firm hope that the Cybercrime Bill will comply with the Convention, without leaving any room for interpretation in its application that could lead to the imposition of a penalty involving compulsory work on persons who express political views or views ideologically opposed to the established political, social or economic system.

Article 1(d). Punishment for participation in strikes. The Committee previously noted: (i) the sentencing to imprisonment for misdemeanour and malicious defamation under sections 311 and 312 of the Penal Code of two members of the Cambodian Labour Confederation (CLC), after taking part in a protest following the dismissal of union members and after filing a complaint against two workers for violence; (ii) the arrest and prosecution of four leaders of the Workers Friendship Union Federation for having organized an illegal strike, blocking traffic and disturbing public order; and (iii) the arrest and detention of at least 29 casino union leaders and activists during a strike, nine of whom had been charged with incitement to commit a felony, under sections 494 and 495 of the Penal Code.

The Committee notes that the Government indicates that peaceful assembly, when conducted in cooperation with the authorities and in compliance with security, safety and public health measures, constitutes the exercise of rights guaranteed by the Constitution. However, unannounced assemblies or other actions that constitute a violation of the law compel the authorities to intervene. The Government states that arrests have been necessary as a result of breaches of security, safety and public health measures, as well as instances of incitement to violence and social unrest that jeopardize public order, security, and the rights of freedom of others.

The Committee further notes the Government’s statement, in its written information provided to the Conference Committee, that the two members of the CLC sentenced to imprisonment referred to above are currently in employment. During the discussion of the case by the Conference Committee, the Government added that their cases were currently under appeal, and the Worker members of Cambodia specified that they had been given suspended sentences of imprisonment of six months at first instance.

As to the arrest of the Naga World casino’s union leaders, the Government states, in its written information provided to the Conference Committee, that the strike led by the union leaders in question breached the legal prerequisites for the exercise of the right to strike. It points out that despite the ruling of December 2021 indicating that the collective labour dispute at Naga World had to be submitted to the Arbitration Council’s procedure and mechanism, and that any new demands which had not been submitted to the Arbitration Council’s procedure could not constitute a valid cause for a strike, the dismissed workers initiated their strike outside Naga World. They were held accountable for their actions and charged under sections 494 and 495 of the Penal Code, as their participation in the strike, deemed illegal, had created substantial disturbances to public order and safety. The Government adds that additional arrests of these strikers had taken place following their violation of COVID-19 preventative measures during the strike. In total, the transgressions led to the arrest of 11 strikers. In March 2022, the court ordered the bail release of these former workers. In this regard, the Committee notes that during the Conference Committee discussion, a number of delegates reported that in May 2023, nine members of the Labour Rights Supported Union (LRSU) were convicted for incitement to commit a felony under sections 494 and 495 of the Penal Code after engaging in peaceful strikes at the casino, and sentenced for up to two years of imprisonment.

The Committee notes that in its observations, the ITUC also refers to the prison sentences handed down to the leaders of the LRSU on the basis of provisions of the Penal Code, which are contrary to the Convention. The ITUC adds that it appears that trade unionists have suffered criminal convictions as a result of their participation in peaceful collective actions.

The Committee has continually emphasized that no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore that measures of imprisonment or fines should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing such acts, such as the Penal Code (see 2012 General Survey on the fundamental Conventions, paragraph 158) The Committee therefore urges the Government to take the necessary measures to ensure that no provision of the legislation is used to sentence a person who organizes or peacefully participates in a strike to a term of imprisonment, under which compulsory labour is imposed. It requests the Government to provide a copy of the court decisions referred to above. Lastly, the Committee urges the Government to ensure the immediate release of any person convicted to a prison sentence entailing compulsory prison labour for exercising peacefully their right to strike.