“Egregious and Blatant Violations of the Rule of Law and Administration of Justice” in Trial of Cambodian-American Lawyer

Cambodian-American lawyer Theary Seng, who lost both of her parents to the Khmer Rouge and still returned to Cambodia to work on human rights, is now in jail in a remote facility on the Thai border, far from her lawyer and family.

The 51-year-old lawyer was sentenced to six years in prison after a severely flawed trial during which the prosecution failed to present evidence of criminal conduct but instead focused on a series of Facebook posts that expressed support for an opposition leader.

A new report from TrialWatch, a Clooney Foundation for Justice (CFJ) Initiative, gives the proceedings an F grade, finding that the trial was “a travesty of justice.” CFJ’s partner, the American Bar Association Center for Human Rights, monitored  Seng’s case on behalf of TrialWatch. Seng’s appeal against her conviction is pending.

Because the proceedings involved myriad violations of Cambodia’s international obligations under the International Covenant on Civil and Political Rights (ICCPR), a treaty to which it is party, CFJ urges that the appellate court overturn Seng’s conviction and order her immediate release.

“This case was all but pre-determined,” said TrialWatch Expert Andrew Khoo, co-chair of the Malaysian Bar Council’s Constitutional Law Committee and co-author of the report along with staff at the American Bar Association Center for Human Rights. “Theary Seng was convicted not because of what she did, but because she supported democratic change in Cambodia. Her continued incarceration constitutes arbitrary detention under the ICCPR, which prohibits imprisoning someone for exercising their right to freedom of expression.”

Seng’s prosecution and conviction come against the backdrop of increasing efforts to shut down political dissent in Cambodia. This suppression intensified when exiled opposition figure Sam Rainsy announced in 2019 that he planned to return to Cambodia to lead protests calling for democratic change. Authorities subsequently initiated a mass crackdown on political opposition and government critics – Sam Rainsy himself was recently convicted of treason and other offenses in absentia.  One of the authorities’ key tools – and one of the laws under which Seng was convicted – is a sweeping provision criminalizing ‘incitement to social disorder,’ which carries a penalty of up to two years in prison.

TrialWatch’s report finds that Seng’s trial is “part of a persistent, documented pattern of misuse of Cambodia’s incitement law,” which TrialWatch has previously exposed.  TrialWatch has also challenged  the ‘incitement’ law before the UN Working Group on Arbitrary Detention, which found it “impermissibly vague and overly broad” and incompatible with international human rights standards. Cambodia continues to flout the UN’s decision, which requested the country report on “[w]hether any legislative amendments or changes in practice have been made to harmonize the laws and practices of Cambodia with its international obligations in line with the present opinion.”  Cambodia has not only failed to amend the law, but has persisted in bringing prosecutions under its banner.

From the outset, the proceedings, in which Seng was tried for both incitement and conspiracy to commit treason. violated her rights. The indictment did not refer to any allegations of criminal conduct, but merely listed her name as one of 47 defendants. This meant that Seng had no understanding of the basis of the charges against her. It was not until more than a year later, once the trial had already started, that she was able to obtain additional information about why exactly she had been charged in the first place. The report finds that this violated her right to prepare a defense, as protected by the ICCPR.

Throughout the trial, both the prosecution and the court focused on Facebook posts in which Seng, through pictures, captions, and reshares, appeared to convey support for Mr. Rainsy’s planned return and criticism of the Cambodian government. This was despite the fact that the conspiracy to commit treason charge required the prosecution to present evidence of an agreement to commit an attack, while the incitement charge required the prosecution to present evidence on intent to cause social unrest – key issues that the prosecution glossed over in court. At one point, a police officer who was the main witness for the prosecution couldn’t even answer when Seng’s lawyer asked whether there was “any evidence from your documentation that linked the charges to Seng.”

The report concludes that the “significant gaps in the evidence were not addressed at all” and finds strong indication “that the court presiding over Seng’s trial was neither independent nor impartial.” This violated her right to a fair trial, which Cambodia is obligated to respect under the ICCPR.

“This conviction was unjust,” said Mr. Khoo.  “Expressing political views should not have been the basis for criminal charges, let alone a conviction and prison sentence.  Cambodia must stop misusing its laws to criminalize dissent.”

Background

Theary Seng is a Cambodian-American lawyer who emigrated to the United States from Cambodia as a child. She later returned to Cambodia to work on social and political issues, founding the Center for Cambodian Civic Education and the Association for Khmer Rouge Victims in Cambodia.  She has been an outspoken critic of Cambodian Prime Minister Hun Sen and the ruling party.

Her trial began in late November 2020. Seng initially sought the court’s permission to represent herself, but the court prevented her from doing so and refused to give her access to her case file until she obtained a Cambodian lawyer. The report concludes that this violated her right to counsel under the ICCPR. Later, the Cambodian authorities denied Seng access to international legal assistance when her international lawyer, Jared Genser, was barred from entering the country after he attended one trial session and held a press conference about the case.

Seng’s trial concluded on June 14, 2022 with her conviction, following which Seng was transferred to a prison 300 km from Phnom Penh, with the prison spokesperson telling a media outlet, “If we keep her in [Phnom Penh], they [her supporters] will come to disturb the prison, and how will my officers work?” As a result of this transfer, Seng is isolated from her family and lawyer, which is particularly damaging as she prepares for her appeal.

Read more about TrialWatch’s work on Cambodia here.  For a full analysis of the case and grade that has been provided, read the report here.