Cambodian Prime Minister Hun Sen (L) and jailed opposition leader Kem Sokha. Image: Facebook

There are only two likely reasons why Cambodian opposition leader Kem Sokha has been held in detention without trial for almost 19 months on treason charges that could sentence him to 30 years in prison.

Either the government-aligned courts know that they don’t have enough evidence to credibly prosecute him, or Prime Minister Hun Sen’s government never really intended to sentence him but thought by now he would have acquiesced to its emasculating demands.

This week, Kem Sokha’s lawyers called for the investigation to be “closed soon because the judge’s investigation has lasted for longer than a year,” Chan Chen, one of Kem Sokha’s lawyers, said on May 7, local media reported.

Another defense lawyer, Pheng Heng, said at the same time that they would again ask for the case to be dropped, though the courts have rejected four earlier attempts at annulment. “We have studied the case and there is no evidence that could have our client charged with an offense,” he claimed.

How the case is handled could have major diplomatic and economic implications for Cambodia. The European Union and United States have called on Phnom Penh to release Kem Sokha, with both threatening to impose economic sanctions and remove Cambodia from preferential trade deals if he isn’t freed.

Kem Sokha was arrested in September 2017, two months before his party, the opposition Cambodia National Rescue Party (CNRP), was forcibly dissolved by the Supreme Court on charges of trying to topple the government.

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

Despite scant evidence revealed so far, the opposition leader stands accused of conspiring with foreign elements to launch a coup and overthrow the ruling Cambodian People’s Party (CPP), which has been in power consecutively since 1979.

Political analysts believe that the government’s likely original intention was to hold a trial, convict the political leader of treason and then swiftly offer a royal pardon, which are now ordered by Hun Sen rather than the monarch.

The government has now granted pardons to a dozen or so CNRP officials who were banned from engaging in politics by the Supreme Court in 2017. Clemency, however, has come with restrictive conditions.

Analysts say that the ruling party’s demands include Kem Sokha publicly distancing himself from Sam Rainsy, another CNRP leader who has been in exile since 2015; that he forms a new political party to break the CNRP’s domination of opposition politics; and he takes a more conciliatory stance towards the CPP.

All of this would play to the Hun Sen government’s long-desired aspiration to divide Kem Sokha and Sam Rainsy, whose respective parties merged to form the CNRP in 2012. Their popular partnership nearly defeated the ruling CPP at the following year’s general election.

So far, though, Kem Sokha hasn’t played along. The reason why the government and courts have constantly delayed his trial, analysts say, is likely because he has refused to yield to their demands. As such, the government and courts seem unsure of how to proceed faced with the case’s high stakes.

Kem Sokha was moved to house arrest in September last year after spending 12 months at a remote and rundown jail near the Vietnamese border.

Because house arrest provisions didn’t exist under Cambodian law, the government says he is now on bail rather than in detention, meaning the courts have technically abided by laws that restrict pre-trial detention for more than 18 months, a limit that expired on March 3.

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

But the UN’s Special Rapporteur on Human Rights in Cambodia, Rhona Smith, who visited the country earlier this month and was denied a meeting with Kem Sokha, opined that “he is still under de facto detention because of the limitations placed on him by the judicial supervision.”

In June 2018, the United Nations Working Group on Arbitrary Detention, a body of independent experts, stated that his detention was “arbitrary” and “politically motivated.”

Kem Sokha can still clearly sway politics despite being under house arrest. Indeed, he has been noted for the stoic and determined, if not dogged, way he has taken to his captivity as the country’s most prominent political prisoner.

He has said little about politics, which might not be just because his house arrest terms forbid it, but it appears he hasn’t yielded to the terms for clemency the ruling party is believed to have dangled, analysts say.

“The Phnom Penh regime is spreading rumors that CNRP President Kem Sokha would be willing to ask for his ‘rehabilitation’ from Hun Sen…The big lie is that Kem Sokha actually intends to found another party and has given up the hope of seeing the CNRP reinstated,” Sam Rainsy wrote on Facebook in February.

If Kem Sokha will not acquiesce to the CPP’s demands, as so far seems to be the case, then the government has limited options. It could simply prosecute him – his treason charge carries a maximum 30-year jail term – without offering an immediate royal pardon.

This would certainly earn the ire of already critical foreign governments, and could prompt the US and European Union to swiftly impose sanctions on the country beyond their current threats to withhold preferential trade terms.

It would also likely frustrate CNRP supporters in Cambodia, many of whom believe that if they remain quiescent for now there is a good chance Kem Sokha will eventually be freed.

If freed Kem Sokha would be expected to restart his political activities and embolden his party’s repressed supporters. The government appears keener now than last year to keep CNRP activists fearful and inactive.

Prime Minister Hun Sen delivers an address in Siem Reap province on April 13, 2018. Photo: AFP/Tang Chhin Sothy

Earlier this month, a court in Battambang province, a historic hotbed for opposition activity, ordered 25 former officials of the CNRP to appear before the court and answer questions about their supposed violation of the November 2017 Supreme Court ruling banning the party.

“The Cambodian government continues to harass numerous opposition officials in the courts and to threaten them with prison time long after the main opposition party was unjustifiably disbanded,” Brad Adams, Asia director of Human Rights Watch, said in a statement on May 7.

For now, the government seems content to keep him detained and postpone his trial until a more favorable time. The CPP clearly hopes that Western governments will lose their resolve on Cambodia and soften their demands on democratic progress.

Currently, the US and EU are demanding considerable changes to political and human rights conditions, including Kem Sokha’s release, to avoid imposing sanctions. Yet Hun Sen’s government might be astute in thinking that it can wait out its Western critics.

The EU is in uncharted waters, as it has rarely tried to assert its influence over a foreign government for reasons of political repression. Meanwhile, a European election later this month could see populists less concerned with human rights take office.

Moreover, China has recently offered Phnom Penh assurances that it would make up for any financial shortfall derived from EU punitive measures, namely its withdrawal of Cambodia from its Everything But Arms (EBA) preferential trade scheme, a move that would devastate its export industries.

As for the US, the Cambodian government knows that Washington has more serious issues to deal with; not just questions of the Trump presidency but also major geo-strategic issues in Venezuela and Iran, and an ongoing trade war with China.

But the US Embassy in Cambodia has shown no signs of fatigue so far, and has even ratcheted up its rhetoric in recent months.

In February, in a post on Facebook, it stated: “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.”

Cambodians hold a protest in front of the European Commission at the EU‘s headquarters in Brussels, Belgium on September 18, 2017 to demand the release of opposition leader Kem Sokha. Photo: AFP Forum/Wiktor Dabkowski

A source who requested anonymity claims that the Cambodian government thought that it could disrupt EU unity by appealing directly to individual European states to back away from the bloc’s collective tough stance, though the quiet lobbying doesn’t appear to be working, yet.

The same source also suggests that the Cambodian government reckoned it could appeal to US President Trump over the heads of his administration and diplomatic staff, though this hasn’t apparently worked either.

Phnom Penh’s main problem remains that its investigators have only tenuous and highly subjective evidence of Kem Sokha’s alleged treason, said a Cambodian government source with knowledge of the investigation’s status.

The most incriminating document produced by investigators so far is an apparently highly-edited video of a speech Kem Sokha gave in 2013 in which he spoke of receiving assistance from the US to help win a seat in that year’s general election – a statement his defenders say was a mere reference to advice US democracy groups gave to several Cambodian political parties.

Such spurious evidence could still be enough to get a conviction in Cambodia’s politicized courts and would serve an effective propaganda purpose domestically, the source said, even if the verdict is condemned as bogus by Western governments.

But there are clear signs this has been a long time coming. In early 2015, two years before his eventual arrest, a short film produced by the Council of Ministers’ Press and Quick Reaction Unit and televised on a channel owned by Hun Sen’s daughter, Hun Mana, depicted what it claimed was a secret coup plot by Kem Sokha.

The never proven claim bears a close resemblance to the government’s narrative of events that led to Kem Sokha’s 2017 arrest.

Kem Sokha (L) greets supporters on the last day of the commune election campaign in Phnom Penh, June 2, 2017. Photo: AFP/Tang Chhin Sothy

At the time, the unit’s deputy director, Tith Sothea, told local media his department, part of the executive branch, had produced the film to “encourage the court institutions to consider legal methods and to take measures” against Kem Sokha.

Moreover, the Phnom Penh Municipal Court questioned Kem Sokha in January 2014 but found no reason to continue its investigations over allegations that he had incited protests that erupted after the 2013 general election, which at the time the CPP government painted as an opposition-inspired coup attempt.

The CPP government has thus viewed Kem Sokha as treasonous since at least early 2015. But four years later, it’s still not clear state prosecutors have a compelling case or evidence, leading many to the conclusion that the pending case against him is more political than legal.

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