Cambodian Prime Minister Hun Sen hinted this week that he may not offer a royal pardon to detained opposition leader Kem Sokha, who marked 18 months in pre-trial detention on March 3 on what many see as spurious treason charges.

Kem Sokha’s trial and possible life sentencing has been repeatedly delayed, with no indication if and when court proceedings will be held. Some analysts believe that that Hun Sen is either stalling for time or simply doesn’t know how to proceed as international pressure rises for the opposition leader’s release.

Kem Sokha was first arrested on September 3, 2017 in a midnight raid of his Phnom Penh home. He was subsequently charged with treason, ostensibly for saying in a speech several years earlier that the United States had helped his political career.

Two months later, in a five-hour show trial, his Cambodia National Rescue Party (CNRP) was dissolved by the Supreme Court for supposedly conspiring with the US to instigate a “color revolution” to overthrow Hun Sen’s Cambodian People’s Party (CPP) government.

At the time, independent observers claimed that prosecutors failed to present compelling evidence to prove the incendiary accusation.

“Kem Sokha’s arrest and detention is purely a political motivated case, aimed at getting rid of a potential political competitor,” the CNRP, now functioning mostly in exile, said in a March 3 statement.

Cambodian opposition leader Kem Sokha (L) is arrested and escorted by police at his home in Phnom Penh on September 3, 2017. Photo: AFP/Stringer
Cambodian opposition leader Kem Sokha (L) is arrested and escorted by police at his home in Phnom Penh, September 3, 2017. Photo: AFP/Stringer

The CNRP statement also said that Hun Sen’s government had violated the constitution by holding Kem Sokha in pre-trial detention for more than 18 months, the legal limit for holding a suspect without trial. Last September, Kem Sokha was released from a prison near the Vietnam border and transferred immediately to strict house arrest in Phnom Penh.

Prosecutors can thus argue that technically Kem Sokha is no longer in pre-trial detention because he was freed on bail. Cambodia’s legal system has no provisions for house arrest, meaning Kem Sokha’s status as either in pre-trial detention or on bail is a grey area.

The delay over his highly anticipated trial has puzzled Phnom Penh-based observers and analysts. Many thought that he would have his day in court after last July’s general election, at which the CPP won all 125 National Assembly seats and consolidated a de facto one-party state without the CNRP’s participation.

Some believed that after the election Kem Sokha would be convicted, handed a stiff prison sentence and then swiftly given a royal pardon, which Hun Sen can legally request. That would have given Hun Sen a sort of propaganda win by jailing his opponent and then showing mercy through his release.

Royal pardons in Cambodia are commonly given to jailed activists and politicians. Kem Sokha received one in late 2016 which quashed an unserved prison term he was handed for refusing to appear in court for a marital infidelity trial. He camped out at the CNRP’s Phnom Penh headquarters for much of that year to avoid trial.

One explanation for the current delay in legal proceedings is that prosecutors lack concrete evidence to prove Kem Sokha’s alleged treason and are concerned about holding a trial that foreign diplomats and rights groups will closely and critically observe.

Cambodians protest in front of the EU‘s headquarters in Brussels to demand the release of opposition leader Kem Sokha. Photo: AFP Forum/Wiktor Dabkowski

The European Union and United States, both now threatening to impose crippling new sanctions against Hun Sen’s democratic backsliding, have placed Kem Sokha’s release at or near the top of their list of demands in negotiations with Phnom Penh to avoid the punitive measures.

At the time of Kem Sokha’s arrest, state prosecutors cited as evidence of his alleged treason speeches he made years ago in which he thanked the US and other foreign governments for supporting Cambodian democracy and his political party’s efforts.

This led to accusations, many propagated by CPP media mouthpieces, that the CNRP was part of an international conspiracy involving the US Central Intelligence Agency, Taiwan’s ruling party and independent journalists, among others, to topple Hun Sen’s elected government.

In the Supreme Court’s ruling on the CNRP’s dissolution, prosecutors claimed that US Congress-funded broadcaster Radio Free Asia was an “assistant” and independent local election monitoring outfit Comfrel a “colluder” in the CNRP’s supposed revolutionary plan.

Kem Sokha’s family members have said that his speeches merely thanked Washington for being a donor to Cambodia’s National Election Committee and broad national democracy-building, and for supporting him as founder and former president of the Cambodian Center for Human Rights (CCHR), a nongovernmental organization that received funding from the State Department’s USAID scheme.

Kem Sokha stepped down from CCHR years before founding his Human Rights Party, which later merged with the Sam Rainsy Party to form the CNRP in 2012. Kem Sokha’s legal team also claimed that state prosecutors relied on clearly biased witnesses, including his known political foes, in making their case against him.

Cambodian Prime Minister Hun Sen delivering a speech during an event attended by garment workers in Kampong Chhnang province. Photo: AFP/Tang Chhin Sothy
Prime Minister Hun Sen delivering a speech during an event attended by garment workers in Kampong Chhnang province. Photo: AFP/Tang Chhin Sothy

It is not clear yet that the prosecution has gathered any new evidence since Kem Sokha’s initial arrest. The US Embassy in Phnom Penh said as much in a statement posted last month on its Facebook that drew swift government criticism for allegedly interfering in the legal process.

“Did you know Kem Sokha has now been in detention for nearly 18 months? That’s 530 days of captivity. He is an innocent man, being held unjustly under false pretenses. There is no evidence against him, and no trial date has been set. No evidence. No trial. No justice,” the US Embassy statement said.

Another explanation for the delay is that the CPP is waiting for a politically opportune moment to hold the trial. Under international pressure, Hun Sen’s government has vacillated between agreeing to engage the CNRP in a political dialogue and openly rejecting such talks.

On March 4, Hun Sen suggested he would retract a possible clemency for 118 CNRP politicians who were banned from politics for five years by the Supreme Court’s dissolution decision.

Legal amendments made by the Constitutional Council in December opened the possibility of some being pardoned if they showed “respect” to the Supreme Court’s controversial dissolution decision. Only three ex-CNRP politicians have taken the offer, a consensus rejection which has likely embarrassed the government.

“The royal government has made efforts to open the door for you all. But whether you want to enter or not is your problem. Please don’t expect that there will be pardons or that any charges against anyone will be dropped,” Hun Sen said at a groundbreaking ceremony on March 4.

Kem Sokha supporters outside the Appeal Court during a bail hearing for the jailed opposition leader, Phnom Penh, September 26, 2017. Photo: Reuters/Samrang Pring
Kem Sokha supporters outside an Appeal Court during a bail hearing Phnom Penh, September 26, 2017. Photo: Reuters/Samrang Pring

He also claimed that most of the banned CNRP politicians were waiting for the advice of an “unnamed someone,” meaning Kem Sokha, on whether or not to appeal for a pardon. Some believe they won’t seek clemency until after he is released.

Hun Sen might be happy to delay Kem Sokha’s trial if it means other CNRP politicians postpone their appeals for pardons, which the premier can then blame on their, and not his, obstinance. It is also possible, however, that the CPP has backed itself into a corner with potential grave consequences for the economy, and doesn’t know what to do next.

Sophal Ear, associate professor of diplomacy and world affairs at Occidental College at Los Angeles, says that the government was “too scared to keep [Kem Sokha] in prison so they let him go home. They thought all their problems would go away. Wrong.”

If the CPP ultimately decides against trying Kem Sokha, it would represent a climb down from the conspiratorial propaganda it has propagated since his arrest. It would also raise legal questions about the validity of the CNRP’s dissolution, as the verdict relied largely on Kem Sokha’s alleged treasonous activities.

If, on the other hand, the CPP goes ahead with his trial and likely imprisonment, it risks not only angering the Cambodian public – which remains widely supportive of the opposition politician – but also Western governments that have drawn a sharp red line under his continued and unjustified detention.