Independence of the Bar in Cambodia and Mr. KONG Sam Onn, lawyer | Letter

Re: Independence of the Bar in Cambodia and Mr. KONG Sam Onn, lawyer

To: H.E. Samdech Hun Sen, Prime Minister

H.E. Samdech Hun Sen, Prime Minister; H.E. Sok An, Deputy Prime Minister and Chairman; H.E. Ang Vong Vathna, Minister of Justice

From: Gail Davidson, Executive Director,LRWC

Date: 2009-06-30

LRWC has been closely monitoring the case of Mr. KONG Sam Onn, a lawyer, and the situation of the Bar Association of the Kingdom of Cambodia (BAKC). LRWC has been informed that Mr. Kong Sam Onn represents two Members of Parliament charged with criminal offences, namely Ms. MU Sochua (charged with criminal defamation under the UNTAC Penal Code, Article 63), and Mr. HO Vann (reportedly charged with defamation and incitement offences under the UNTAC Penal Code for which latter charge a jail term may be imposed). LRWC has also learned that a criminal defamation complaint under UNTAC Penal Code Article 63 has been lodged against Mr. Kong Sam Onn along with a complaint to the BAKC Bar Council. The complaints against Mr. Kong Sam Onn are connected with his representation of Ms. Mu Sochua in her defamation claim against Prime Minister Hun Sen. On 18 June 2009 the BAKC Bar Council reportedly stated that Mr. Kong Sam Onn had breached articles 4, 6, and 15 of the Code Of Ethics for Lawyers Licensed with the Bar Association of the Kingdom Of Cambodia. Mr. Kong Sam Onn is to be provided with an opportunity on 7 July 2009 to make submissions to the Bar Council about these findings.

The independence of the legal profession is fundamental to the development and maintenance of the rule of law in a democratic society. The UN Basic Principles on the Role of Lawyers articulate the international importance of ensuring the right and duty of lawyers to represent their clients’ rights vigorously. The UN Principles state that all persons are entitled to protection of human rights and fundamental freedoms, and they are entitled to “effective access to legal services provided by an independent legal profession” (Preamble). Accordingly, lawyers are not to be “identified with their clients or their clients’ causes as a result of discharging their functions” (Article 18). The UN Principles state that governments must ensure that lawyers are able to perform their professional functions “without intimidation, hindrance, harassment or improper interference” (Article 16), and that lawyers must not be subjected to or threatened with “prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics” (Article 16). The UN Principles are explicitly based on the Universal Declaration of Human Rights (UDHR) as well as the International Covenant on Civil and Political Rights (ICCPR) which upholds the right to fair hearings by competent, independent and impartial tribunals, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which emphasizes the obligations of States under the UN Charter to promote universal respect for, and observance of, human rights and freedoms (Preamble). The Kingdom of Cambodia is bound by the UN Charter and the UDHR and has ratified the ICCPR and the ICESCR.

The UN Principles on the Role of Lawyers also state that codes of professional conduct for lawyers are to be in accordance with national law as well as international standards and norms (Article 26). Thus, LRWC respectfully maintains that the Code of Conduct is to be read in accordance with the Law of the Bar and the Constitution. The Law on the Bar explicitly upholds the principles of independence and autonomy of the legal profession (Article 1). In disciplinary hearings, lawyers have the right to a fair and fair and impartial hearing in accordance with recognized standards and ethics of the legal profession (Article 27). LRWC respectfully urges that this means the government must respect the Bar Council’s mandate to apply the Law on the Bar and the Code of Ethics in accordance with established principles of international human rights without interference or ex parte influence on any members of the Council by government officials or their representatives.

Cambodia’s Constitution, as the supreme law in Cambodia, explicitly upholds the principles of liberal democracy, the UN Charter, the UDHR, human rights covenants and conventions, as well as an independent judiciary. Further, the Royal Government of Cambodia’s own Legal and Judicial Reform Strategy states explicit commitment to the rule of law and to an independent and transparent judiciary. Any interference with processes or decisions of prosecutors, judiciary or members of other tribunals (such as Bar Council disciplinary proceedings) by persons in the executive branch of government or their representatives is fundamentally contrary to internationally recognized principles and standards relating to the rule of law as well as the Constitution, relevant laws and stated government policy.

LRWC recognizes the right of all individuals to legal protection of their reputations but is profoundly concerned that criminal defamation, disinformation and incitement laws, the Law on the Bar and the Bar Code of Ethics are being utilized to suppress political dissent and freedom of expression, and to punish professional legal practice and curtail progress towards an independent legal profession. LRWC respectfully urges the government to instruct all government officials and their representatives to respect the independence of the Bar Council and all prosecutors and judges in this and all other cases in Cambodia.

I look forward to your response to these important concerns.