Interview: Jonathan Bush, Legal Expert, Columbia Law School

Jonathan Bush, an American lecture in law at Columbia Law School, visited VOA in Washington D.C., on October 23, 2017. (Photo: Mony Say/VOA Khmer)

Jonathan Bush sat down with VOA Khmer’s Say Mony to talk about the use of law in the government’s ongoing crackdown on the political opposition, civil society, and the media.

[Editor’s Note: Jonathan Bush is an American lecturer in law at Columbia Law School. He teaches courses on war crimes trials and has written extensively on issues relating to the Holocaust and International law. He recently sat down for an interview with VOA Khmer’s Say Mony in Washington, D.C. about the use of law in the government’s ongoing crackdown on the political opposition, civil society, and the media. In recent months, Prime Minister Hun Sen’s government has levied high tax bills on independent media outlets and civil society groups, forcing them to cease operations in the country. In November, the Supreme Court ruled, in a case filed by government lawyers, that the country’s main opposition party, the Cambodia National Rescue Party, would be dissolved for its leaders’ alleged role in a plot to overthrow Hun Sen and directed from Washington.]

VOA: Now, as you know, the Cambodian government has been trying to crack down on the political opposition, civil society workers, and journalists who are critical of the government in the run-up to the July general elections this year. So, what does this mean to you when a government has been using laws to make sure people cannot express themselves freely in this democratic country?

Bush: I followed the events a bit and think they’re very disturbing. It’s a pattern you see in many countries around the world now with increasingly autocratic regimes trying to hide their crackdowns in the name of the law. It is very worrisome. There are a lot of ways that there are a lot of legal tools at the disposal of the government to a crackdown. I mean you can allow libel actions, civil or criminal; you can have incitements to crackdown on the business entities that have newspapers or the NGOs for alleged tax violations or administrative violations. You can even bring treason charges. These things have been known for a long time, you know, as tools that autocrats use. I’d like to believe that they only work temporarily. Usually, the truth will come out. You know, no one was more brutal than Stalin but everything even [Nikita] Khrushchev leaked told part of the truth of what Stalin did and the rest came out later. I don’t think you can hide these dark secrets forever. I think that better friends of the government should tell it that ‘Let them fight it out in the court of public opinion; let the journalists say what they want.’

VOA: Even journalists who are viewed as having brought the unbiased and balanced information to the public have also been charged in regard to their work performance. For instance, two former journalists from an independent newspaper The Cambodia Daily were charged with incitement when they just asked questions. So, how do such charges affect journalistic freedom and democratic space in the country?

Bush: Obviously, these kinds of things narrow the democratic space in a way that is really sad. One hopes that foreign NGOs and foreign journalist groups will allow the spotlight to shine and maybe let the government know that people are watching. You can see this in many countries. It’s a scary time in many countries to be a journalist. The results are, for all of us, fewer ideas and fewer honest arguments. One can hope again that, it’s easy to sit here in the studio and hope others be brave, but I hope they are that somehow these journalists can get released, can get the pressure eased, can get the space to say their views on things and that the regime will learn not to use the tools that every regime has, the legal tools, that allows it to crackdown and to misuse the spirit of law by following the letter.

VOA: As you said, Cambodia is not the first and only country to have learned and exploited this tactic of using the legal tools to crackdown on political opponents, so what are the mechanisms you have learned to deal with this tactic?

Bush: That’s the hardest question of all. I mean you’re absolutely right. For instance, there is no need to name names, but there are some countries in Eastern Europe that at the moment seem to be going down a similar path. Because they are in the EU [European Union], other EU cousins can try and bring regional institutional pressure to get journalists released, to get lawsuits dismissed. That sort of thing. Countries that are fully independent have sovereignty to hide behind. If Cambodia wants to do this, no one is going to withhold foreign aid with conditions to release journalists or change the behavior on trade benefits or so. And that’s worrisome. How you get the regime to do what it ought to behave in a respectful way to all Cambodians, to all citizens, when you have nothing except hope and hortatory pressure. I don’t see that other governments, the major powers, are going to pressure Cambodia. Sorry to be the voice of, not despair, but frustration at the moment. That’s how it feels.

VOA: The Cambodia leader has often referred to the current U.S. president’s rhetoric about the media when it comes to his own treatment of the media and journalists in the country, saying even the U.S. president attacked the media. What can the Cambodian people and people outside Cambodia do about this?

Bush: The fact that the president has denounced the press regularly and enthusiastically whether it’s entertainment or news or a whole media network, but by and large he is not able to do much. He still has an independent judiciary; we still have different press voices that point to institutional needs and guarantees when one is singled out. There haven’t been newspapers closed down for political reasons that I know of since the Trump Administration took over. There have not been journalists jailed. So, the other side of the story is yes we have a president and some of his aides who denounced various elements of the press. We also have the press that is largely oblivious to it. Yes, the president said a lot of things but a lot of things are still coming out. Newspapers print what they want about the Russian leaks or about the family businesses of the president and we’ll see how it all plays out, but the press has still been able to stand its ground.

VOA: Going back to the two former the Cambodia Daily journalists. Their case has been handled by Cambodian courts, which have not been known for their independence, so how do you think the justice will be done to them?

Bush: Obviously, it’s going to be a matter decided internally by the Cambodian courts. No one is going to say this should be viewed elsewhere by foreign judges or foreign courts, so it’s really up to courts that themselves have sometimes been questioned. What is needed, if I were involved, and I’m not, are the best damn defense lawyer that you can get, and publicity and the spotlight. Sometimes, these cases are handled not in the spotlight, but that’s something the best defense lawyer should be assessing: how do we handle this? Who should we talk to? It’s easier to get the cases dropped than to defeat them when they are in court because if a prosecutor can back down and see that he has overreached, maybe that’s a better way. But that’s a matter of tactics. These people need the best lawyer and mobilize friends ready to shine a light. I hope people are as brave as they had been in the past.

VOA: Finally, is there anything the international community can do about this to make sure the Cambodian government will not go further beyond the red line?

Bush: Are there things we or others in the international community can do? Absolutely. There are lots [of things] we can do and it may be effective. You can easily imagine a European community voice on this backed by the power of tourism, trade, and investment that Europe collectively does bring. You can imagine an American voice on this. Whether we will, I don’t know. A government voice is always better in these matters than the NGOs. Having Human Rights Watch and the Open Society Foundation make statements is useful but it sure would help if the [U.S.] State Department or the Commerce Department or the EU or other friends of Cambodia would kind of say ‘enough and no more.’ I mean, again without naming names, there are a half dozen countries in the world where we see the exact same process of a crackdown on the press and political opponents and who knows what else will come. And now is the time for friends of democracy to make themselves heard.

This interview was edited for length and clarity.