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Theary Seng’s Case ‘Neither Independent Nor Impartial,’ Trial Monitor Finds

FILE - Cambodian-US human rights advocate Theary Seng, dressed as Lady Liberty, is arrested by police after being found guilty of treason in her trial in front of the Phnom Penh municipal court on June 14, 2022. (Photo by Samuel / AFP)

From the moment Cambodian-American lawyer Theary Seng was charged to the day she was convicted, she never had a chance at a fair trial, according to the American Bar Association, which released a report last week calling her case “one of many ongoing attempts by the Cambodian government to suppress dissent.”

Theary Seng was among dozens of critics and opposition figures found guilty as part of a mass trial that concluded on June 14 in Phnom Penh. While protesting against her conviction outside the court, wearing a makeshift Statue of Liberty costume, she was arrested and sent to a prison in Cambodia’s northern Preah Vihear province.

The American Bar Association's Center for Human Rights observed her trial in the Cambodian capital as part of the Clooney Foundation for Justice’s TrialWatch initiative and released its findings in a report on Sept. 16.

“From the outset, the authorities repeatedly violated Ms. Seng’s fair trial rights,” the report said, noting that she was named as part of a long list of defendants accused of incitement, without any specific explanation of what she had done.

She was then denied a lawyer of her own choosing (herself), prevented from obtaining the casefile against her, and questioned before being given access to materials on the charges against her — all in violation of her legal rights, the report said.

“Furthermore, Ms. Seng’s conviction despite the complete lack of evidence regarding the offenses alleged…violated her right to be presumed innocent and indicated that the court hearing her case was neither independent nor impartial,” it said.

Theary Seng was a prominent figure in Cambodia’s human rights circles long before her trial, having spent nearly two decades leading non-profits working on behalf of Khmer Rouge victims and fighting for democratic freedoms in modern Cambodia.

FILE - A cyclist rides past an electoral hoarding of Cambodia's Prime Minister and leader of the ruling Cambodian People's Party (CPP) Hun Sen, in Phnom Penh on July 26, 2018.
FILE - A cyclist rides past an electoral hoarding of Cambodia's Prime Minister and leader of the ruling Cambodian People's Party (CPP) Hun Sen, in Phnom Penh on July 26, 2018.

However, she became a face of resistance to Prime Minister Hun Sen’s government during the hearings that followed her indictment in November 2020. She dressed in outfits ranging from a classical Apsara dancer to bright red gowns, and delivered tirades against what she described as the unfair, unjust and corrupt court system.

Theary Seng’s lawyer in Cambodia, Choung Chou Ngy, has appealed her six-year prison sentence, while international human rights lawyer Jared Genser says he is pressing the U.S. government and United Nations to apply pressure for her release.

The ABA report urged the Appeal Court to immediately overturn Theary Seng’s conviction and free her, while also calling on the Cambodian government to “stop targeting individuals for exercising their right to free expression” and amend the incitement article in the criminal code, which “has been repeatedly used as a tool for repressing dissent.”

Justice Ministry spokesman Chin Malin told VOA Khmer this week that Theary Seng had ample opportunity to select a lawyer and make her case, but instead insisted on representing herself and insulting the judiciary.

“Indeed, she exercised her right to self-defense too much,” he said, adding that her critiques of the system were not an effective criminal defense. “Accusations without a legal basis are not a legal means of assisting defendants in the judicial proceedings of Cambodia, an independent and sovereign state.”

Chin Malin added that Theary Seng was not jailed to silence her criticism but was prosecuted and convicted for committing criminal acts in support of longtime opposition leader Sam Rainsy, who lives in exile and who widely publicized plans to return to Cambodia in November 2020, in what the government claims was an attempted coup.

“Mr. Sam Rainsy's actions are intolerable criminal acts, and she is involved in all of them. Thus, this legal measure is not due to the exercise of legal rights and freedoms but to the act of violating Cambodian law, which requires the legal responsibility of Cambodia’s enforcement,” the Justice Ministry spokesman said.

Sam Rainsy’s return was thwarted when he was barred from boarding a Thai Airways flight to Bangkok, apparently at the behest of Cambodia’s government.

The evidence of Theary Seng’s support for Sam Rainsy’s return — and by extension her alleged incitement — were a series of Facebook posts. The ABA report details her cross-examination during her trial, which focused on those posts.

FILE - Cambodia's opposition leader in-exile Sam Rainsy (2nd R), who leads the Cambodia National Rescue Party (CNRP), arrives at the Kuala Lumpur International Airport in Sepang on November 9, 2019.
FILE - Cambodia's opposition leader in-exile Sam Rainsy (2nd R), who leads the Cambodia National Rescue Party (CNRP), arrives at the Kuala Lumpur International Airport in Sepang on November 9, 2019.

Under questioning by the presiding judge, Theary Seng “affirmed that she frequently posted statuses that criticized the government leadership” and “acknowledged that she had probably reshared Sam Rainsy’s social media post, which called the Hun Sen regime a dictatorship.” She also “affirmed that she supported Sam Rainsy and wanted to gather people to stand up for democracy, but that she was not aware of all of his activities,” according to the report.

The prosecution then asked Theary Seng similar questions about her support for Sam Rainsy, and then asked her about comments made by the opposition leader during speeches, such as a call to “dismantle the Berlin wall” and another for military forces to ““turn their guns against the government.”

“Notably,” the ABA report said, “the prosecution did not allege that Ms. Seng herself had reposted this specific clip or that she had used those same words in any of the Facebook posts introduced as evidence against her.”

At a later hearing, Theary Seng was asked by the presiding judge and prosecutor to wash off her makeup, which she eventually did. The court then heard a police officer read excerpts from Sam Rainsy’s speeches ahead of November 2019 in which he said he was returning to Cambodia to “arrest” Hun Sen for treason, along with other Cambodians who desire change.

While the police officer concluded that the speeches showed that Sam Rainsy sought to topple the Hun Sen government, when asked if there was evidence that Theary Seng was involved in those efforts, the officer “could not answer the defense lawyer’s question,” per the ABA report.

The only evidence presented at other hearings was Facebook photos showing her support for the opposition. On June 14, the court found Theary Seng and her co-defendants guilty of treason and conspiracy to incite social disorder.

The court’s written judgment was made available about a month after the verdict was handed down.

“What little analysis it contains (approximately three pages) lacks specificity and factual details,” the ABA report said.

“Instead, the judgment merely states that the court agreed with the prosecution that there were ‘sufficient elements’ to prove the conspiracy and incitement to social disorder charges against Ms. Seng (and her co-defendants) based on Sam Rainsy’s plan to return to Cambodia on November 9, 2019.”

Additional reporting from VOA Khmer's Kann Vicheika in Phnom Penh.