Let’s Battle It Out: The Defamation Case of Hor Namhong vs. Sam Rainsy

Friday, April 18, 2008
Editorial by Khmerization
Originally posted at http://khmerization.blogspot.com

“The Khmer Rouge Tribunal is still in full operation. It is not too late to bring the perpetrators of the crimes, the likes of Hor Namhong and Keat Chhon, to answer what they knew about the Khmer Rouge atrocities and their involvements in those atrocities. So, let’s battle it out, Rainsy.”

Some people would just want to let the Khmer Rouge leaders live with their guilt and let bygones be bygones for the sake of national reconciliation, peace, prosperity and stability. But with over 1.7 million Khmers died in tragic circumstances and with many victims traumatised and national healing is at stake, it is unimaginable to let the Khmer Rouge crimes go unpunished and let bygones to be gone by. We Khmer must be reconciled to the fact that national reconciliation must come with justice, and to let the bygones to by gone by as in the case of the Khmer Rouge crimes, would be a betrayal of mankind and the 1.7 million who perished in the most inhuman ways. The truth must be revealed and that the perpetrators and their cohorts must be unmasked.

It is interesting to see that, while the Khmer Rouge Tribunal is making great efforts to bring former Khmer Rouge to justice, other former Khmer Rouge, the likes of Hor Namhong and Keat Chhon are trying to battle it out with their victims (Sam Rainsy and co.) in the Cambodian court, citing defamation (read this link).

While defamation is very hard to prove and prosecute in an independent judiciary, it is not in the Cambodian judiciary, especially when the court is at the disposal of the plaintiff, in this case Hor Namhong, who is a senior government minister and the defendant, Sam Rainsy, who happens to be an opposition leader. But this is a fight over principle and, win or lose, the one who has the most to lose will be Hor Namhong himself.

Let’s set the record straight here. In order for any defamation cases to prevail and be successfully prosecuted, the plaintiff must prove and satisfy three elements of the laws. Firstly, the plaintiff must prove that the person who defamed him had actually identified him by name. In this case, it’s disputable whether Rainsy did identify Hor Namhong in his speech, although Rainsy did mention the person by his job description as a foreign minister. Secondly, the allegation must have been published or being communicated to the public. Sam Rainsy made the comments and they have been communicated to his audience and the comments were published by local and international media. Thirdly, that the defendant must have known that his statements are false and that the plaintiff must have suffered damages as a result of those false statements. To satisfy this element of the laws, Hor Namhong must prove that he had suffered in the form of damages to his reputation or job loss, he was subject to public ridicule, hatred and contempt or degradation to his dignity.

By close examination, Hor Hamhong has no strong legal basis for a defamation suit. While Hor Namhong can satisfy the second element of the laws described above, it would be very difficult for him to satisfy the first and third element of the laws. In conclusion, his defamation law suit against Sam Rainsy has no merit and is therefore has a very low chance of victory, if the case is brought before an independent judiciary. But in Cambodia, where the judiciary is at Hor Namhong’s disposal, the chance of a legal success over Sam Rainsy is a sure thing.

All the legal challenges above notwithstanding, Sam Rainsy is not left without a defence. While the plaintiff must satisfy three elements of the laws to be able to successfully prosecute the defamation case, the defendant has also three elements of the laws to defend him/herself against the defamation suit. First is the truth. The truth is the ultimate defence against defamation suit. Sam Rainsy said that Hor Namhong was a director of the Boeng Trabek Prison, which was true. And, as a chief of the prison, he was responsible for the tortures, murders and disappearances of many Cambodian and foreign diplomats, the likes of Sarin Chhak, Chau Seng etc. who were imprisoned at Boeng Trabek and who have disappeared mysteriously without a trace.

Secondly, that Sam Rainsy’s statements were made in the public interests. With over 1.7 million deaths under the Khmer Rouge regime, with the Khmer Rouge Tribunal is seeking for the truth and uncountable executions at Boeng Trabek Prison, the public has the interests and the right to know the truth. Thirdly, is the freedom of speech and parliamentary immunity. Freedom of speech here is not a strong defence as freedom of speech has its limits. You can speak freely as long as you don’t defame someone. And parliamentary immunity is certainly not a defence here because Rainsy’s comments were made outside of parliament. It would be an ultimate defence if the comments were made inside of parliament.

In conclusion, Hor Namhong’s prosecution case is very weak, while Sam Rainsy’s case has a very strong defence - and that is the defence of the truth and the defence of public interests. Hor Namhong can only satisfy one element of the defamation laws - and that is the publications of Rainsy‘s comments, but he will not be able to prove that Rainsy’s statements were directed at him personally or that the statements were maliciously or vexatiously intended to ruin his reputation. It would be very hard to prove that he had suffered any damages as a result of Rainsy’s comments. Meanwhile, Sam Rainsy’s case can at least satisfy two elements of the defence in the defamation laws - and that is the truth and public interests. In an independent judiciary, Hor Namhong’s case has very little chance of success at all.

The Khmer Rouge Tribunal is still in full operation. It is not too late to bring the perpetrators of the crimes, the likes of Hor Namhong and Keat Chhon, to answer what they knew about the Khmer Rouge atrocities and their involvements in those atrocities. So, let’s battle it out, Rainsy.