Analysis: Where truth often gets ignored

Stuart White and Buth Reaksmey Kongkea
The Phnom Penh Post, 25 November 2013

On Friday morning, two sources quoted in a report on illegal logging will face questioning at the hands of a Kandal province prosecutor over allegations that they defamed Cambodian tycoon Try Pheap.

Under the Cambodian penal code, the legal definition of defamation is much like that in established democracies – a defamatory statement must not only result in harm to the subject’s reputation but must also be demonstrably false.

However, due to defamation laws’ often capricious application, observers say, the factual basis of the statements by Sen San and Ouk Sambo, which largely relate to Pheap’s alleged involvement in illegal logging, won’t necessarily even be explored.

“Right now, in our current system, our police don’t need to investigate,” lawyer Sok Sam Oeun, executive director of the Cambodian Defenders Project, said yesterday.

Discretion to pursue cases is left up to investigating judges and prosecutors rather than evidence gathered by police, Sam Oeun said. When both officers of the court decide to send a case to trial, he continued, it often lends the case a legitimacy that shifts the burden of proof.
“The presumption of innocence is abolished. Because it means that one judge, and a prosecutor … two magistrates, believe there is enough proof,” he said. “So this decision [in and of itself] is enough evidence [for a conviction].”

“It means the presumption of guilt replaces the presumption of innocence. The accused must prove that he is innocent,” he concluded.

In a perfect world, said Cambodian Human Rights Center president Ou Virak, a prosecutor “would have to come up with facts that the two accused in this case are knowingly falsifying this information with a malicious intent”.

In reality, however, “it’s going to be the oknha, the tycoon, putting pressure on the court [to find them guilty], and it’s going to be the NGOs putting pressure on the court to rule the other way,” he added.

The truth behind San and Sambo’s statements will “definitely not” receive a thorough investigation, Virak said, with the outcome of the case depending less on “actual evidence in the court, and more on the court of public opinion”.

However, it still remains to be seen whether the pair’s cases will go to trial, and Kandal provincial court vice prosecutor Sam Rithy Veasna declined to comment in detail on the progress of the case or any potential investigation into the statements at its centre.

“I am now taking action on this case,” he said. “I cannot make any report or comment about this case because, according to the penal code, I am not authorised to report on, or talk about, any case to other people. I have to keep my professional confidentiality.”

A representative of Try Pheap also declined to comment on whether the tycoon would welcome an investigation into his businesses, and referred questions to Pheap’s lawyer, whom he declined to provide contact information for.