KCF chairman’s conviction upheld in Municipal Court

Moeung Sonn

Wednesday, 25 November 2009
Meas Sokchea
The Phnom Penh Post

Phnom Penh Municipal Court upheld its verdict against Khmer Civilisation Foundation (KCF) chairman Moeung Sonn on Tuesday, ordering the absent defendant to serve two years in jail and pay a fine of 15 million riels (US$3,598).

In a retrial of a case originally decided on July 14, deputy prosecutor Ek Chheng Huot and government lawyer Pal Chandara argued that Moeung Sonn, currently living in France to avoid imprisonment, was guilty of disinformation for comments he made at a press conference in May that a light installation at Angkor Wat would damage the 11th-century temple. The KCF chairman subsequently appealed the decision.

“The accused has filed a complaint contesting the original verdict, but he does not have the confidence to show up here today, so I would like the court to uphold its decision,” Ek Chheng Huot said.

Sam Sokong, Moeung Sonn’s lawyer, told the court that his client had not engaged in disinformation, but had merely voiced valid concerns also aired elsewhere.

“He just said that the company [that installed the lights] did not perform its work properly. My client’s comments were not disinformation, and he had no intention to degrade the government’s reputation,” Sam Sokong said.

Sam Sokong added that he planned to lodge an appeal on Moeung Sonn’s behalf, and that Moeung Sonn would write new letters of apology to the government in hopes of securing an acquittal. Moeung Sonn had previously written a letter of apology to deputy Prime Minister Sok An, head of the Apsara Authority.

Pal Chandara said that Moeung Sonn’s comments were tantamount to incitement and defended the need for government action in the case.

“Moeung Sonn is not the only one who loves Angkor. We all love Angkor together,” Pal Chandara said. “Moeung Sonn’s allegations caused a strong reaction from the people, so if the government had not intervened on time, unrest would have occurred.”

Judge Chhay Kong said the hearing had done little to change his opinion from July’s decision, and reaffirmed the original prison term and fine levied in the case.

Speaking by phone from France, Moeung Sonn said there was no chance for him to receive a fair trial because he could not attend the hearing without fear of being arrested upon arrival in Cambodia.

“I did not attend because I was afraid of being arrested, but I do not have the intention to harm the government’s reputation,” he said.

Moeung Sonn asked journalists to help him

Saturday, October 10, 2009
Everyday.com.kh
Translated from Khmer by Heng Soy

Moeung Sonn, President of the Khmer Civilization Foundation (KCF) who fled to live in France, sent emails to several local news media, asking them to help publish documents and letter he sent to Hun Xen. The content of Moeung Sonn’s letter to Hun Xen is to ask the latter to push for a new trial in his case. Moeung Sonn was sued by the government for misinformation and incitation because he talked about the installation of light bulbs to illuminate the Angkor Wat temple. Moeung Sonn expressed his confidence that if a new trial is conducted in his case, Judge Chhay Kong will rethink his case. Moeung Sonn also asked the journalists to cooperate with the KCF to call on Heng Samrin, the president of the National Assembly, to change Article 62 of the UNTAC era criminal code so that this article of the law will no longer be used to prevent the freedom of expression of Cambodians.

"[Hun Sen] wants to make a point as a man, he is destroying so much we have invested in nation-building": Mu Sochua

Cambodia's Crackdown Stirs Concerns About Legal System

Wednesday, July 29, 2009
By Tim Johnston
Washington Post Foreign Service

BANGKOK -- A heightened crackdown on journalists and opposition activists in recent weeks by Cambodia's leaders has provoked new concern that the government is engaging in widespread abuse of the nation's legal system to muzzle its detractors.

Newspaper editor Hang Chakra is serving a one-year sentence in Phnom Penh's notorious Prey Sar prison for articles that alleged corruption among government officials. Opposition activist Moeung Sonn, who heads the Khmer Civilization Foundation, fled the country last month after being given a two-year sentence because government officials feared unrest when he questioned whether a new lighting system would damage the revered Angkor Wat temple. Last week, a court heard charges against Ho Vann, a member of parliament from the opposition Sam Rainsy Party who is accused of slandering 22 generals by questioning their academic qualifications.

And on Friday, a court is to hand down its verdict in a case against Mu Sochua, another opposition member of parliament, who is accused of defaming Cambodia's authoritarian prime minister, Hun Sen.

"I'm sure I will be found guilty, unless there is some magic in the air, and I don't feel that it is," Mu Sochua said in a telephone interview.

The cases have caused growing concern among human rights activists about Cambodia's legal system, which has long been accused of political bias.

"The Cambodian government is imposing its most serious crackdown on freedom of expression in recent years," Brad Adams, the Asia director for Human Rights Watch, said in a statement last week.

The case against Mu Sochua, a mother of three and former minister for women and veterans affairs, has brought the concern to a head because she is the first person to challenge Hun Sen so openly.

In a lawsuit, she accused Hun Sen of calling her "strong leg" -- a term considered derogatory in Khmer culture -- in a speech in early April. When he declined to apologize, she called a news conference and declared that his comment was an insult to all Cambodian women. That provoked a countersuit from Hun Sen. The courts have thrown out her lawsuit, but Hun Sen's is ongoing.

"If he allowed Mu Sochua to challenge him, other people might go down the same path. It is to make sure a second person won't try the same thing in the future," said Son Chhay, another outspoken opposition member of parliament.

Mu Sochua is fighting her legal battle alone. Her attorney withdrew last month after he came under government pressure, provoking a protest from the Office of the United Nations High Commissioner for Human Rights.

"The government kept on slamming him with more and more penalties, and he was facing the end of his career," Mu Sochua said. "I am not going to put another lawyer through that torture."

If convicted, she is likely to face a fine of about $2,500. But, more important, she could lose the right to sit in parliament, and that could be Hun Sen's intent, analysts said.

His ruling Cambodian People's Party won 90 of 123 seats in parliament in elections last year, but analysts said Hun Sen could be using the courts to get rid of the opposition.

"He wants to put them out of business," said David Chandler, a history professor at Monash University in Australia. "The whole concept of pluralism hasn't got any roots in Cambodia. The opposition is almost, by definition, disloyal."

Son Chhay said the recent crackdown is a symptom of a government that is failing to address some of the pressing issues facing the country, including corruption, land seizures and economic stagnation.

"Although they control the institutions, they can't allow activists or the opposition to spread the issues -- that could bring disaster. Like many dictatorial regimes in the region, because they are unable to solve the problems, they resort to all measures to control the people and shut them up," Son Chhay said.

The government also is looking to pass a law that would limit demonstrations to 200 people and require permission from authorities.

In the early 1990s, the international community invested about $1.5 billion in a U.N. effort to restore civil government to a country that Hun Sen, a former member of the Khmer Rouge, had run since 1985.

The opposition fears that he is destroying fragile institutions that have taken years to build.

"What is really detrimental to Cambodia as a whole is that because he is destroying so much we have invested in nation-building," Mu Sochua said. "It is not me on trial, but the judiciary of Cambodia."

Cambodian cases intensify concern

July 27 2009
By Tim Johnston
Financial Times (UK)

Cambodia's government is under fire because of its legal attack on opponents. Hang Chakra, former editor of the Khmer Machas Srok newspaper, shares a cell with 50 other convicts in Phnom Penh's notorious Prey Sar prison, serving a one-year sentence for articles that alleged corruption among government officials.

Moeung Sonn, head of the Khmer Cultural Civilisation Foundation, was last month sentenced to two years in jail in absentia for "disinformation" after suggesting a new lighting system at the Angkor Wat temple complex might damage the 600-year-old buildings.

On Friday, a court is to hand down its verdict in a case against Mu Sochua, an opposition parliamentarian accused of defamation against Hun Sen, Cambodia's prime minister. "I'm sure I will be found guilty unless there is some magic in the air - and I don't feel that there is," she said.

"The . . . government is imposing its most serious crackdown on freedom of expression in recent years," said Brad Adams, Asia director for Human Rights Watch.

Cambodia cracks down on dissenters

July 26 2009
By Tim Johnston in Bangkok
Financial Times (UK)

Asia is no stranger to governments using the courts to muzzle their detractors, but the Cambodian government’s current legal attack on its opponents is causing concern in the region.

Hang Chakra, former editor of the Khmer Machas Srok newspaper, is sharing a cell with 50 other convicts in Phnom Penh’s notorious Prey Sar prison, serving a one-year sentence for articles that alleged corruption among government officials.

Moeung Sonn, head of the Khmer Cultural Civilisation Foundation, was last month sentenced to two years in jail in absentia for “disinformation” after suggesting that a new lighting system at the Angkor Wat temple complex might damage the 600-year-old buildings.

And on Friday, a court is to hand down its verdict in a case against Mu Sochua, an opposition parliamentarian accused of defamation against Hun Sen, Cambodia’s prime minister.

“I’m sure I will be found guilty unless there is some magic in the air, and I don’t feel that there is,” she said on Sunday.

“The Cambodian government is imposing its most serious crackdown on freedom of expression in recent years,” Brad Adams, Asia director for Human Rights Watch, said last week.

The case against Mu Sochua, a former minister for women and veteran’s affairs, is based on her allegation that Hun Sen called her “strong leg” – a cutting insult in Khmer culture – in a speech in her constituency in early April. When he declined to apologise, she called a press conference in which she alleged that not just herself, but all Cambodian women had been insulted.

That allegation provoked a counter-suit from Hun Sen. The courts threw out her case but agreed to hear Hun Sen’s complaint.

Her lawyer withdrew after he came under pressure, provoking a protest from the office of the office of the United Nations High Commissioner for Human Rights. Mu Sochua declined to find a different attorney. “I am not going to put another lawyer through that torture,” she said.

If she is found guilty, she will face a fine of about $2,500 (€1,760, £1,520). More importantly, she could lose the right to sit in parliament. Some analysts say that might be Hun Sen’s intention.

“The concept of pluralism hasn’t got any roots in Cambodia,” said David Chandler, a professor of history at Monash University in Australia. “The opposition is almost by definition disloyal.”

Son Chhay, another outspoken opposition parliamentarian, says the recent crackdown is a symptom of a government that is trying to address the issues facing the country, such as corruption, land seizures and economic stagnation.

“Like many dictatorial regimes in the region, because they are unable to solve the problems, they resort to measures to control the people and shut them up,” he said.

“If he allowed Mu Sochua to challenge him, other people might go down the same path,” said Son Chhay.

In the early 1990s, the international community invested some $1.5bn in a UN operation to restore civil government to a country that Hun Sen, a former Khmer Rouge cadre, had run since 1985.

The opposition fears the prime minister is using his parliamentary majority – the CPP won 90 of the 123 seats in parliament in elections last year – to destroy fragile institutions that have taken years to build.

“It is not me on trial, but the judiciary of Cambodia that is on trial,” said Mu Sochua.

Judicial Independence Is The Key To Reducing Defamation Lawsuits[-Travesty of Justice is the norm under Hun Sen's Cambodia ... just like under the KR]

Wednesday, 17 June 2009
Press Release: Asian Human Rights Commission

Cambodia: Judicial Independence Is The Key To Reducing Defamation Lawsuits Against Critics And Upholding Freedom Of Expression

Prime Minister Hun Sen is utilising much of the country’s electronic media to assert his leadership of the country and send out messages to his people through his public speeches at different functions. Now and again in such speeches he rebukes his critics and makes disparaging remarks and even or threats against them. At times, such threats have been accompanied by legal action. Such legal action has now become part of Cambodia’s political landscape as Hun Sen himself and other powerful people in his government have sued Members of Parliament (MPs) from the opposition, journalists and human rights defenders for defamation, disinformation and/or incitement. Over recent months, such lawsuits have multiplied.

Mu Sochua, an MP from the opposition Sam Rainsy Party (SRP), sued Hun Sen for defamation. Hun Sen then counter-sued Mu and her lawyer, Kong Sam Onn, for the same offence, following their remarks against him at a press conference. A total of 22 army officers have sued Ho Vann, another MP from the opposition SRP, also for defamation, after Ho had made remarks critical of the degrees they had obtained from a Vietnamese military institute, although the newspaper that had reported his remarks later published his correction. A number of officials working for a Deputy Prime Minister have sued the editor of a newspaper for its stories implicating them in corruption. A student living in Boeung Kak Lake area where residents are facing eviction has been charged and sentenced for writing slogans critical of the government and the company which are responsible for that eviction on the outside wall of his house. Moeung Son, the leader of an NGO called the Khmer Civilisation Foundation has sued a TV presenter, Soy Sopheap, who is very close to Hun Sen, for his remarks critical of him, only to be sued in turn by the government for his remarks critical of the installation of lighting in the country’s famous Angkor Wat temple.

Except for two, all these lawsuits have been filed by powerful figures in the government and by the government. All have used the authority of the government to get back at their critics. In the government’s lawsuits in the past, defendants have all been convicted or have been compelled to apologise to avoid conviction, unless there was strong pressure from inside and outside the country for their release. Some have even fled the country.

Over the last four years the leader of the opposition SRP, Sam Rainsy, was sentenced in absentia after fleeing abroad. He was granted amnesty only to be sued later in 2008 by a senior minister for defamation. Thanks to pressure, the latest lawsuit against him in the Cambodian court was dropped, but that minister has still sued him in a French court as Sam has a dual Cambodian - French citizenship. A broadcaster, Mam Sonando, was arrested twice. Three human rights activists were arrested and a number of others fled the country. Thanks to pressure and their apologies of sort, the broadcaster and human rights activists were released. Some journalists were sued and one was arrested in 2008. Among those journalists several have fed the country. A university teacher and two ordinary people were arrested and had to linger in jail. The teacher was released on bail in March 2009 pending an appeal. In their confrontation with the powerful, the fate of those weak people is no different from that of an egg hitting a rock.

This past experience does not bode well for the defendants in the recent lawsuits. Moeung Son, fearing imminent arrest fled the country. The court has now dropped the charge against Hun Sen in the opposition MP Mu Sochua’s lawsuit against him. In contrast the same court is laying charges against her in his counter-lawsuit against and is requesting the lifting of Mu’s parliamentary immunity for the purpose. Because of such outcomes favourable to the powerful, those lawsuits have further deepened fears that they are eroding freedom of expression and the courts are being used to muzzle government critics

According to the constitution of Cambodia, there is supposed to be a separation of powers and the judiciary is supposed to be independent. Yet in practice, because of various defects, there is no separation of powers and the judiciary is not independent. Almost all, the prosecutors and judges are members of the ruling Cambodian People’s Party (CPP). The President or Chief Justice of the Supreme Court, Dith Munty, is a member of its standing and central committees. Recently, the director of the court of Phnom Penh, Chiev Keng, has been appointed advisor to the president of the Council of Ministers’ Council of Jurists, Sok An, who is a deputy prime minister. The director of the court of Kandal province, Khieu Sameth, and the director of the court of Takeo, Sin Dim, have been appointed advisors to the President of the National Assembly, Heng Samrin, who is the Honorary President of the CPP.

Because of their lack of independence, their rulings in favour of the powerful in lawsuits against their critics, and other defects, courts are widely seen as being used to ‘prosecute political opponents and other critics of the government.’ Though it has denied the judiciary’s lack of independence, the government seems to have recognized, at least implicitly, this serious flaw when, in October 2008, Deputy Prime Minister Sok An announced he was to take action “to enforce discipline and make sure the courts are independent.

In its review in May 2009 of Cambodia’s implementation of the International Covenant on Economic, Social and Cultural Rights, a UN review committee, noted this lack of independence and effectiveness of the judicial system which, it said, “hinders the full enjoyment of human rights including economic, social and cultural rights.” The committee urged the Cambodian government, among other thongs, “to intensify its efforts to modernize and improve the work of the judiciary."

This assessment shows that little has been done to ensure judicial independence. The recent appointment of judges as advisors to the government and the National Assembly has not helped. The latest decisions of the Phnom Penh court to press the charge against opposition MP Mu Sochua and the lifting of her parliamentary immunity and to drop the charge against Prime Minister Hun Sen in their mutual defamation in their recent suit and counter-suit has only highlighted this lack of judicial independence.

This status of the judiciary is totally unacceptable in a country which is supposed to be a liberal democracy governed by the rule of law, and which has undertaken to guarantee and protect human rights, including freedom of expression, and establish an independent judiciary for the purpose. With an increase in the recourse to the due process of law, instead of violent means to suppress criticism, it is more imperative than ever that Cambodia establish an independent judiciary. All constitutional institutions, that is, the Government, the Parliament, the Judiciary itself, the Supreme Council of the Magistracy, the Constitutional Council, the King, and also the legal profession, should discharge their respective duties to bring about this independence.

This whole task would require a comprehensive plan. The following are but a few measures that should be taken as a matter of priority. The law on the statute of judges and prosecutors (altogether belonging to the same magistrate corps), which the country’s Constitution has specifically stipulated, should be enacted without any further delay. It is unacceptable that 16 years after the promulgation of that Constitution in 1993, this particular law has not yet seen the light of day, in contrast to the laws respectively on the statute of civil servants and the statute of members of the armed forces, which are not mentioned in the same Constitution, which were speedily enacted in the mid-1990s.

The judge’s act should clearly stipulate the independence of prosecutors and judges and secure their tenure. It should guarantee and protect their irremovability, and stipulate that they may not be transferred to another position or court without their consent. It should also prohibit their affiliation to political parties. There is no such guarantee for judges and prosecutors at the moment. Almost all of them are affiliated to the ruling CPP. They can be, and have actually been, transferred without their consent. Furthermore, their appointment by the King has shown a strong influence of the government when it has been made by the Minister of Justice and approved by the Supreme Council of the Magistracy (SCM) while it should have been made, as stipulated in the Constitution, by this SCM itself.

The King has a constitutional duty to ensure the independence of the judiciary and he has the SCM, which he chaired, to assist him in this task. The SCM should guarantee and protect this independence and respect the irremovability of judges and prosecutors. It should effectively enforce its Code of Conduct for Judges, and establish fair and transparent disciplinary measures and procedure against them, and also a complaint mechanism and procedure that are easily accessible to the public. It should also challenge any interference in the work of all courts of law and in the independence of judges and prosecutors at the Constitutional Council. At the moment, the SCM has not carried out this task and has shown no resistance to pressure from outside. It has failed to defend the independence of the judiciary.

The SCM has its own structural flaws. It is an integral part of the judiciary and should also be independent. Yet it is not, when most of its nine members are affiliated to the ruling CPP and one ex-officio member, the president of the Supreme Court, is a member of the standing and central committee of that party. The Minister of Justice, and not the SCM, is running the SCM secretariat, and in effect this minister runs this supreme judicial body. In addition the same minister, according to the Code of Criminal Procedure, may order the prosecution of suspects. This order may be legal but it is interference in the work of the prosecution which, according the Constitution, belongs to the judiciary and is therefore independent, and which has exclusive prosecuting power. It is therefore unconstitutional. The SCM should now run its own secretariat and the Minister of Justice’s order to prosecutors should be ceased.

It would be a further help to the independence of the judiciary if training of judicial officers could be entrusted with the SCM. At the moment the Royal Academy for Judicial Professions which trains judges, prosecutors and court clerks is placed under the Council of Ministers and its leadership is composed of officials who are members of the ruling party. Furthermore, the academy’s trainees are urged to vote for that party and upon their graduation, they are also urged to be its members. All these practices should cease, and independence and impartiality, among other ethical values, should be well inculcated in them instead.

Furthermore, the SCM had not been properly formed when three of its members, who are judges, are appointed, and not elected by their peers as stipulated in the law on its organization and functioning. This appointment that has been made since the creation of the SCM in 1994 is supposed to be a temporary arrangement, pending the organisation of the required election .This election cannot be held before the enactment of the Law on the Statute of Judges, but this law has not been enacted yet. This prolonged delay of 16 years, and the continued holding up of the election of those three members is simply unreasonable and unacceptable. They have made the legitimacy of the SCM questionable. Yet this body with dubious legitimacy has appointed three members of the Constitutional Council. The Law on the Stature of Judges should be enacted and the subsequent election of those three SCM members should proceed without any further delay.

For its part, the Constitutional Council (CC) which is the guardian of the Constitution should uphold the separation of powers and the independence of the judiciary as stipulated in the Constitution. So far no case of violation of these constitutional provisions has been raised with the CC although there are instances of such violation. The recent appointment of judges as advisors to the government and to the National Assembly is the latest case of violation.

As the law on the CC stands now, only the King, the Prime Minister, the President of the National Assembly, the President of the Senate, one tenth at least of Members of Parliament or one quarter at least of Senators may file a request for the constitutional review of acts of parliament before and after they come into force. Courts may also file such a request but for laws that have already come into force. Ordinary people may also file a constitutional complaint through the President of the National Assembly, the President of the Senate, one tenth at least of Members of Parliament or one quarter at least of Senators. Regulations or acts of government and decisions of state institutions are outside the CC’s jurisdiction, except when they may affect the rights of litigants.

Litigants in court may file a request for the constitutional review of any provision of the law or any decision of state institutions that they claim affects their rights, through the concerned court and then the Supreme Court. So far, this particular procedure is not widely known, and no litigant has filed any constitutional complaint against decisions of state institutions though there are such decisions that affect their rights and also the independence of the judiciary. Eviction orders issued by different local authorities and courts have affected evictees’ rights to housing and just compensation and their constitutionality should have been challenged at the CC. Yet no constitutional complaint has been filed against such decisions even when eviction cases have been brought to court.

There is a need to raise the awareness of this procedure among the public at large and among the legal procession in particular, so that they can make use of it to protect litigants’ rights and contribute to strengthening the independence of the judiciary. The jurisdiction of the CC and the constitutional complaint procedure should be enlarged to cover not only acts of parliament but also decisions of state institutions. The President of the National Assembly, the President of the Senate, Members of Parliament and Senators, as well as the public, should have power to file constitutional complaints against not only acts of parliament, which is the case at the moment, but also decisions of state institutions.

The CC, like the SCM, suffers from lack of independence and has dubious legitimacy. It has nine members, three nominated by the King, three by the National Assembly and three by the SCM. Almost all its nine members are affiliated to the ruling party. The nomination of its three members by the SCM has dubious legitimacy when the legitimacy of the SCM itself is dubious since three of the SCM’s own members are not elected as they should be.

In order for the judiciary to be independent, it is imperative that these two top state institutions themselves, the SCM and the CC, be independent and have unquestionable legitimacy. Their respective members’ affiliation to political parties should be prohibited. The Constitutional Council should be more active and act on its own to defend the Constitution, the separation of powers, the independence of the judiciary and human rights.

In order to ensure its own legitimacy and that of the SCM, the Constitutional Council should declare that the prolonged delay in enacting the law on the statute of judges is an omission, and this omission is unconstitutional. In this ruling it should set a deadline for the enactment of this law on the statute of judges and for the organisation of the election of three judges to serve as members of the SCM.

With independence and unquestionable legitimacy and enlarged jurisdiction, the Constitutional Council can effectively ensure the constitutionality of all acts of parliament and decisions of state institutions, uphold the separation of powers and the independence of the judiciary, including the independence of the Supreme Council of the Magistracy, courts of law and judges and prosecutors. With such independence, courts cannot be easily used to persecute members of the opposition and other government critics, contributing thereby to reducing the government’s defamation and other lawsuits against them and, in the end, to upholding freedom of expression.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Defamation lawsuits: UN is concerned

Monday, June 15, 2009
By A.L.G.
Cambodge Soir Hebdo
Translated from French by Luc Sâr
Click here to read the article in French

The UN Office of the High Commissioner for Human Rigths (OHCHR) in Cambodia indicated that lawsuits stemming from political debates “undermine the constitutional freedom of opinion and expression which everyone in Cambodia is entitled to.”

Eight defamation or disinformation lawsuits were brought up in Cambodia since April 2009, the UN OHCHR noted with concerns in a communiqué dated Monday 15 June.

“The experience in other countries shows that limiting freedom of expression, instead of addressing issues and criticism through discussion and a reasonable debate, not only provokes self-censorship but nurtures fear, frustration and anger, with the risk of leading to further conflict and violence,” the communiqué stated.

The UN OHCHR also notes that, among the current legal cases, a lawsuit was brought up for defamation against the “government” rather than against a particular individual, as is in normal cases.

The lawsuits involve SRP MP Mu Sochua (who, along with Kong Sam Onn, her lawyer, are sued for defamation by Hun Xen); Hang Chakra, Editor-in-Chief of the Khmer Machas Srok newspaper; Meoung Sonn, President of the Khmer Civilization Foundation; Sam Rainsy who is sued by Kep Chuktema, the governor of Phnom Penh city; SRP MP Ho Vann, as well as Soung Sophon, an official of the SRP Youth Movement who is part of the 4,000 families in Boeung Kak Lake threatened with eviction by the Shukaku Co.).

The use and abuse of defamation and disinformation lawsuits dangerously undermine constitutional freedoms of opinion and expression: UN OHCHR

UNITED NATIONS
OFFICE OF THE HIGH COMMISSIONER
FOR HUMAN RIGHTS IN CAMBODIA
No. 10, Street 302, Sangkat Boeng Keng Kang I, Khan Chamcar Mon, Phnom Penh Cambodia
Tel: +(855) 23 987 671 / 987 672 / 993 590 / 993 591 or 216 342 Fax: +(855) 23 212 579 or 213 587
E-mail: cambodia@ohchr.org Website: http://cambodia.ohchr.org

“The use and abuse of defamation and disinformation lawsuits dangerously undermine constitutional freedoms of opinion and expression and democratic development”
says the UN human rights office

A briefing note on freedom of expression, defamation and disinformation

15 June 2009

Since April this year, not less than eight separate criminal defamation and disinformation complaints have been lodged with the Courts by some of Cambodia’s highest public authorities against Government critics. One of them was lodged, not by an allegedly aggrieved individual, but in a generic manner on behalf of “the Government”. These cases are currently under investigation by Phnom Penh Municipal Court Deputy Prosecutor, Mr. Sok Roeun. One of them was adjudicated on 8 June 2009 (see annex for details of these cases).

This recent surge in the use of criminal defamation and disinformation lawsuits filed mostly against politicians, journalists and other persons expressing their views in a peaceful manner on matters of public interest threatens to inhibit what should be a free debate and exchange of ideas and views on these matters. These actions undermine the constitutional freedom of opinion and expression which everyone in Cambodia is entitled to, and which is the cornerstone of the exercise of civil and political rights. The exercise of this right is a significant indicator of the level of protection of and respect for all other human rights in any society. No one should be afraid to express peacefully his or her views, provided this does not infringe on the rights of others. Stifling freedom of expression through the use or the threat of legal action, be it criminal or civil, especially in a context where the courts are vulnerable to executive influence, is a serious threat to democratic development which may undermine the efforts of the past 16 years to rebuild a tolerant and pluralistic environment in Cambodia. The experience in other countries shows that limiting freedom of expression, instead of addressing issues and criticism through discussion and a reasonable debate, not only provokes self-censorship but nurtures fear, frustration and anger, with the risk of leading to further conflict and violence.

At the same time, freedom of expression is not unlimited. It should be exercised in a peaceful manner, with respect towards others and their views, and not in order to advocate violence. International law is clear about the appropriate balance between the rights of free expression and debate on matters of public interest and the protection of individual reputation. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which is part of Cambodian law, states that any restriction on freedom of expression must be provided for by law, and must be necessary for respect of the rights and reputation of others or for the protection of national security or public order, or public health or morals.

Under international law, it is not sufficient that political debate on issues of public interest is expressed in strong terms, or is perceived as disrespectful of or contrary to Governmental policy, for limits on the exercise of freedom of expression to be legitimate. Open and dynamic debate on issues of public interest is part and parcel of the democratic process. Under the Constitution, the Government is responsible before its citizens for its policies and practices, and these must therefore remain open to public scrutiny, criticism and debate. Around the world, it is increasingly recognised that political debate on issues of public interest must be protected, and that civil rather than criminal law is sufficient to protect individual – rather than Governmental - reputations in the rare cases that these are genuinely infringed upon by political debate.

When investigating the complaints lodged before it, the Municipal Court is under a legal obligation to apply these international standards and to assess each case against them.

In respect of Members of Parliament, international law recognises the special role that they have in the democratic process and in forming public opinion and debate. The very purpose of parliamentary immunity is to enable Parliamentarians to discharge their duties as elected people’s representatives and law-makers without fear of retribution. A Parliament, as the name indicates, is a place in society where issues are discussed. The lifting or immunity, or a threat thereof, for no other valid reasons than to intimidate parliamentarians and stifle political or other debate shows disregard and contempt for open and democratic debate. It should be considered only in the case of the most serious offences.

Pursuing the current complaints may reverse the course of the still fragile democratic development process in Cambodia. The OHCHR recalls the international standards accepted by Cambodia and contemporary best practices with regard to defamation related disputes:

• The filing of criminal complaints in respect of public issues raised in the cases concerned is excessive and unjustified. If individuals disagree in public discussions they should first respond to the substance of the allegations and engage in a fair debate about them. If they feel aggrieved by words pronounced by others, they should resort to civil rather than criminal remedies, as the Cambodian law provides.
• It is important for the protection of the democratic space for public debate that public authorities, politicians as well as members of the public, who participate in these debates, tolerate dissenting views and do not regard them as personal attacks. There is nothing wrong in criticising public policies. This is part of a healthy democratic process and environment.
• It is inappropriate for complaints to be filed in the name of the Government. If individual officials feel aggrieved, the Courts are open to them as individuals. This practice reflects international jurisprudence on this issue and the interpretation of Article 19 of the ICCPR by the United Nations Human Rights Committee, the monitoring body of the ICCPR, which has recommended against the criminalisation of defamation of the Government.
• Any issues arising from journalistic publication of matters of public debate should be addressed as provided for under the Press Law.
• The lifting of Parliamentary immunity, or threat thereof, for intimidation purposes undermines its important value in enabling free discussion of public issues among people’s representatives and law-makers. This practice should cease in respect of defamation and disinformation lawsuits.
• As independent and impartial arbiters of cases before them, judges and prosecutors, as well as professional bodies such as the Bar Association, have a professional duty to treat all cases presented to them in the order they were filed, in an equal, fair and objective manner and apply the law without discrimination or prejudice. This is an essential principle of justice not only to be delivered, but also to be seen as being delivered by all parties and the wider public.
• In 2006, the Government took the important step to remove prison sentences as a sanction for criminal defamation. A further step in strengthening the legal framework for democratic debate would be to remove defamation and disinformation from the new Criminal Code currently under preparation, so that only civil courts may address these issues. This would constitute an unequivocal confirmation of the right of all Cambodians to freedom of expression in accordance with the law and a clear recognition of the value of free democratic debate on issues of public interest, while allowing for the reputations of individuals to be properly protected in appropriate cases through civil actions for damages.

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APPENDIX

Several of the most recent instances of defamation and disinformation complaints:

1. The case of Ms. Mu Sochua against Prime Minister Hun Sen and subsequent complaint by the Prime Minster against her and her lawyer Mr. Kong Sam Onn:

On 27 April 2009, SRP Parliamentarian Ms. Mu Sochua lodged a defamation complaint against the Prime Minister for a speech he made on 4 April 2009, while in Kampot province which is her constituency. In her complaint, Ms. Sochua claims that the Prime Minister defamed her by referring to a female parliamentarian from Kampot who had allegedly embraced a General and then later complained that the buttons of her shirt had come undone. She was allegedly also referred to as having “strong legs”, reportedly a derogatory term in Khmer. While the speech did not mention her by name, Ms. Sochua claimed that she was being referred to.

On 23 April 2009, Ms. Sochua, with her lawyer Mr. Kong Sam Onn held a press conference at her party’s Phnom Penh headquarters where she announced her intention to file a defamation lawsuit against the Prime Minister. Her lawyer reportedly outlined the evidence and the grounds he would use to support her complaint.

On 27 April, the Prime Minister’s lawyer, Mr. Ky Tech, lodged a defamation complaint against Mu Sochua as well as against her lawyer for defaming the Prime Minister by claiming that he had defamed her. In addition, Mr. Ky Tech filed another complaint against Mr. Kong Sam Onn with the Bar Association for allegedly violating the code of conduct of the Cambodian Bar. The Phnom Penh Municipal Court dismissed Ms. Mu Sochua’s complaint on 10 June. The Prime Minister’s case against Ms. Sochua and her lawyer is still actively being pursued with threats made to lift her parliamentary immunity. The Bar Association has also started to investigate alleged ethical misconduct by Mr. Kong Sam On.

2. Complaint of defamation and disinformation against Mr. Hang Chakra, editor of the Khmer Machas Srok newspaper:

On 21 May 2009, the Phnom Penh Municipal Court issued a summon for Mr. Hang Chakra, the editor-in-chief of the Khmer Machas Srok newspaper to appear in court on June 3 for questioning over a disinformation and incitement complaint lodged against him by the lawyer of the Deputy Prime Minister, Mr. Sok An. The complaint reportedly relates to several articles published on April 5 and 7 and 21 May in the newspaper, exposing possible corruption attributed to officials working with Mr. Sok An. (One article is titled “Hun Sen Has Cracked Down on Bad and Corrupt Officials Who Are Working Around Sok An”). The complaint reportedly claims that these articles could affect political stability because they were written about government leaders. According to Mr. Chakra, Deputy Prosecutor Sok Roeun questioned him about the sources of the information for his articles, information Chakra has refused to disclose. Article 2 of the 1995 Press Law allows journalists to protect the identity of their sources.

3. Complaint of disinformation and incitement against Mr. Moeun Sonn, President of the Khmer Civilisation Foundation:

On 2 June 2009, government lawyer Mr. Pol Chandara filed a disinformation and incitement lawsuit with the Phnom Penh Municipal Court against Mr. Moeun Sonn, the president of Khmer Civilization Foundation for allegedly publishing untrue information related to the installation of lights at Angkor Wat, contending that heat emitted from the light installation could damage the temple walls. The government lawyer allegedly accused Mr. Moeun Sonn of using such remarks to defame the Government and to incite persons to think negatively about the Government.

4. Complaint of defamation by Municipal Governor Mr. Kep Chuktema against Mr. Sam Rainsy:

The Governor of Phnom Penh, Mr. Kep Chuktema filed a complaint on 27 May in relation to a speech Mr. Sam Rainsy reportedly gave on 14 May, in which he allegedly claimed that Mr. Kep Chuktema was involved in vote-buying for the CPP prior to the 17 May council elections. To date, Mr. Rainsy has not been summoned to the court

5. Complaint of incitement and defamation against SRP Parliamentarian Mr. Ho Vann:

On 5 June, SRP Parliamentarian Mr. Ho Vann was summoned to the Municipal Court pursuant to a complaint of defamation and incitement lodged against him on 27 April by 22 senior RCAF military officers, who were allegedly offended by a comment Mr. Ho Vann had made related to post-graduate degrees conferred on the RCAF officials by a Vietnamese military institution in April.

6. SRP youth leader sentenced to US$ 1,250 for defamation.

On 6 June 2009, Mr. Soung Sophorn, a 22-year-old law student and local leader of the SRP youth wing was charged, arrested and convicted with defamation within three days and sentenced to pay a 5 million Riels fine for having spray-painted words critical of the Government on the wall of his private house. Mr. Soung Sophorn belongs to one of the hundreds families embattled with the Shukaku company and the Municipality to defend their rights to their lands and housing in the disputed Boeng Kak lake case where 4,000 families are under threat of eviction.

Civil society groups slam Cambodian government's harsh suppression of freedom of expression

11 June 2009
Source: SEAPA

Several civil society groups in Cambodia expressed concern at what they claim as "the perilous state of freedom of expression" in the country.

In a joint statement signed by the Cambodian Center for Human Rights (CCHR), Community Legal Education Center (CLEC), Independent Democracy of Informal Economic Association (IDEA), Khmer Kampuchea Krom Human Rights Association (KKKHRA), and Cambodian League for the Protection and Defence of Human Rights (LICADHO), they have accused Phnom Penh authorities of taking "harsh actions to suppress freedom of expression" by residents of Boeung Kak Lake.

The groups also noted that since the end of April 2009, Cambodian government officials have filed complaints of defamation, disinformation or incidetement against several Sam Rainsy Party (SRP) lawmakers as well as a lawyer, a journalist and an NGO president.

On 8 June 2009, the Phnom Penh Municipality reportedly sent armed forces to close the Lazy Fish guesthouse in the Boeung Kak area after its owner agreed to rent the premises to the Cambodian Center for Human Rights (CCHR) for a public forum on "Human Rights and Development" on 12 June 2009. The CCHR decided to suspend its forum after the guesthouse was forcibly closed.
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On Thursday 4 June 2009, Soung Sophorn, a law student, SRP activist and a resident of Boeung Kak, was arrested after he had painted "Absolutely fighting against communist policy," and "People Suffer due to Cheap Government and Company" on the walls of several houses. Detained in police custody for two days, he was then taken to Phnom Penh Municipal Court on Saturday. Despite this being a non-working day for the court, he was hurriedly placed on trial, convicted of defamation and sentenced to pay 5 million riels compensation to the government.

The groups said these actions of the Phnom Penh Muncipality, police and court in the above two cases "were clearly unjustified and aimed at suppressing the freedom of Boeung Kak residents to discuss and express opinions about the pending loss of their homes due to the government giving a private company a 99-year lease to the lake area."

In addition, recent months have seen a total of four defamation, disinformation or incitement complaints filed against three SRP lawmakers, Mu Sochua, Ho Vann and Sam Rainsy, by the government or individual high-ranking officials. Similar complaints were also filed against Mu Sochua’s lawyer, Kong Sam Onn, and Khmer Machas Srok newspaper director Hang Chakra.

Several other lawsuits have also been filed. A disinformation suit was lodged by a government lawyer against Mr. Moeung Sonn, the president of Khmer Civilisation Foundation, for comments he made about lights being installed at Angkor Wat. Mr. Moeung Sonn subsequently fled to France; his departure is understandable in the context of past cases of disinformation in which a non-independent judiciary decided the fate of defendants. Moeung Sonn himself had sued Mr. Soy Sopheap, the commentator of Cambodian Television Network (CTN), for defamation and disinformation as well.

According to the groups, "The pattern of complaints of defamation, disinformation and incitement filed by high-ranking officials, and the intimidation of residents at Boeung Kak lake, poses a serious threat to the right to freedom of expression in Cambodia. In particular, Article 62 (Disinformation) and Article 63 (Defamation and Libel) of the UNTAC criminal code continue to be used to silence the voices of Cambodian people and to prevent public participation."

Given this concern and threat to human rights and freedom of expression in Cambodia, the groups urged the Cambodian government to:

• "Reconsider its lawsuits over defamation and disinformation, in the interests of ensuring that all Cambodian people have the opportunity to express their points of view and to freely participate in debate about government policies and practices,
• "Respect the principles of freedom of expression as stated in the Universal Declaration on Human Rights and other international covenants, to which Cambodia is a party, and also in the Cambodian constitutional law,
• "Encourage high-ranking and elected officials to build stronger democratic institutions which guarantee a greater separation of powers between the executive, legislative and judicial branches, and
• "Protect the constitutional rights of the Cambodian people and ensure the independence of the judiciary so that it respects the rights of all parties involved in litigation cases."

Government Critics Abused by Courts: Group

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
09 June 2009

The Cambodia Watchdog Council on Tuesday called on Prime Minister Hun Sen to drop a suit against an opposition lawmaker, claiming the courts are being used to stymie critics of the government.

A rash of defamation suits and criminal cases against incitement have appeared in recent weeks in the courts, including the suit of Hun Sen against Sam Rainsy Party parliamentarian Mu Sochua, who herself is suing the premier for defamation, for allegedly lewd remarks in the 2008 election campaign.

The head of a non-governmental agency and the editor of an opposition newspaper are also facing lawsuits and criminal offenses in Phnom Penh Municipal Court after offending senior officials, said Rong Chhun, a member of the Watchdog Council.

“Our national leaders do not accept constructive criticism from critics, to consider and to resolve, but the government uses the court system to cover their wrongdoing and has no courage to accept the facts,” he said in a statement. The use of the courts to “pressure and silence critics” was “threatening freedom of expression,” he said.

Council of Ministers spokesman Phay Siphan denied the charges, saying the government was working to “strengthen the rule of law and protect people’s rights and freedoms.”

Govt of Cambodia using its absolute power to obstruct freedom of expression of journalists, civil society and opposition party members: CACJE

Cambodian Action Committee for Justice & Equity (CACJE)
No: 3 Fountain Ave. Cranston RI, 02920 Web: www.cacje.net, Email: cacjepress9@gmail.com
“CACJE is an Alliance for People Power, Promote Social Justice and Support Human Equity”

June 8, 2009

DECLARATION

Cambodian Action Committee for Justice and Equity (CACJE) notes that the Royal Government of Cambodia, which is a merely puppet of Hanoi government, is using her absolute power to obstruct the freedom of expression of journalists, civil society organization, and opposition party members. This oppression was the usual perfect trademark of the authoritarian communist party.

The puppet Hanoi Government perpetrated her absolute oppression upon the people of Cambodia, the nationalists, the patriot journalists, civil right activists defendant the Justice and Buddhist monks as following:

1. Use the courts of Justice to shut up the opponent parties and obstruct the freedom of expression of journalist who expose the corruption of the government or to express opinions contrary to the official ones, and civil rights officers who served national interests.
2. Oblige civil activists and civil tights officers to sign allegiance to the puppet Government as pre-condition to get the authorization to organize any public meetings.
3. Oblige Buddhist monks to raise funds for the January 7 Association which was created by the communist party CPP and oblige them all to follow the communist principle and to have under their thumb the Buddhist structure of the Kingdom of Cambodia. This is against the Buddhist principle.

Representative Ms. MU SOCHUA, her defense lawyer, Mr. KONG SAM ONN and Mr. HANG CHAKRA, director of Cambodian news KHMER MCHAS SROK and Mr. MOEUNG SONN, head of the Foundation for the Support of Khmer Civilization, were sued or countersued in criminal court by Mr. HUN SEN or his henchman for defamation or misconduct or critical statements against Phnom Penh Government’s benefits.

Four Civil Rights Organization officers and television hosts were questioned by Phnom Penh Authority for having participated to the organization of the “Clean Hand” concert which is hold on 30 May and organized by several civil society associations. Inside the premises of the Olympic Stadium, during that concert, several speakers were invited to make remarks, including the US ambassador who explained that corruption in the Kingdom represents a loss of revenue “of about $500 million per year, the equivalent of building 20,000 schools each having 6 classrooms.”

The Tribunal of Cambodia is an instrument of oppression or more exactly a tool of the communist Cambodian People Party. For this reason, it shows the true figure of the authoritarianism of the communist party to enslave Cambodia.

CACJE appeals solemnly to all patriots, inside Cambodia and abroad who were dedicated to democracy, freedom and liberty, justice and Buddhism to riseand unify and act, together under only one leadership to combat the authoritarianism, the corruption, the people who sold our country and to overthrow the communist puppet regime in order to establish the republicanism, democracy and liberty for and of our fatherland.

Signed

SOURN SEREY RATHA
Chief Mission