CCHR: 9th Edition of Series on Fair Trial Rights and Rule of Law - Prohibitio​n on Retroactiv​e Applicatio​n of Criminal Law: New Provisions of the Penal Code

Today the Cambodian Center for Human Rights' (CCHR) Trial Monitoring Project releases the 9th edition of its Series on Fair Trial Rights and Rule of Law. This month's edition, to reflect the year anniversary since the Penal Code of Cambodia came into full force and effect, is entitled: Series on Fair Trial Rights and Rule of Law - Prohibition on Retroactive Application of Criminal Law: New Provisions of the Penal Code.

It is a fundamental principle of criminal law that no one can be found guilty of a criminal offense for an act or omission that did not constitute a crime at the time the alleged action or omission took place (Article 15 of the International Covenant on Civil and Political Rights and Article 3 of the Penal Code). Additionally, a heavier penalty may not be imposed than the one that was applicable at the time of the offense. If, subsequent to the commission of the offense, provision is made by law for the imposition of a lighter penalty, the lighter penalty shall apply (Article 10 of the Penal Code).

CCHR's Findings

Of the 567 trials monitored by CCHR at the Phnom Penh Municipal Court from 10 December 2010 until 31 October 2011, trial monitors recorded 6 cases were the accused was charged with a criminal offense under the Penal Code, even though the Penal Code was not in force at the time the alleged offense was committed.

Of the 567 trials monitored, the sentencing provisions from the Penal Code were applied in 240 trials. In 41 of the 240 trials the retroactive sentencing provisions found in the Penal Code were correctly applied, with their being no recorded instances of the incorrect application of retroactive sentencing provisions.

For further information, please see the attached edition of the Fair Trial Rights and Rule of Law series available in Khmer and English, or visit our website, www.cchrcambodia.org.

Many thanks and kind regards

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Cambodian Anti-Corruption Drive Creates Headache for Western Firms

A man working at a money exchange (R) passes 100 Cambodian riel notes to a client in central Phnom Penh, March 12, 2011 (file photo, Reuters)

August 17, 2011
Robert Carmichael | Phnom Penh
Voice of America

Earlier this month the Cambodian government announced that as part of its anti-corruption drive, it had outlawed the payment of fees to civil servants. But the move has opened a new set of problems that worry Western businesses that operate in the country.

To the government, this was expected to be a minor announcement. As of August 1, all corruption offenses contained in two separate laws were now in force.

For Phnom Penh, this was another step on the road to combating corruption.

The problem is that the move has effectively outlawed "facilitation fees," payments that are critical for doing business in Cambodia. Anyone who pays them can be jailed for 10 years, while the person receiving them can get 15 years.

Investors in Cambodia fear repercussions of bribery law

August 17, 2011
ABC Radio Australia

Earlier this month, the Cambodian government announced it has outlawed so-called "facilitation fees" - paying small sums of cash to civil servants for services such as issuing forms or filing tax returns.

It might not sound like much, but it has sent a bolt through Western businesses in Cambodia.

Presenter: Robert Carmichael

Speaker: Stephen Higgins, CEO ANZ Royal Bank; Matthew Rendall, partner at law firm Sciaroni & Associates.

Click here to listen to the audio program (Windows Media)

CARMICHAEL: For 15 years Cambodia's donors pushed Phnom Penh to do something about corruption, and finally - last year -the government passed an anti-corruption law.

It followed on the heels of another law - the new Criminal Code. The laws contain a list of corruption offences that were meant to come into force later this year. Last week the government announced it had moved that date forward to August 1st.

You might think - so what? That doesn't sound like much. The government didn't think so either, but buried deep inside the new Criminal Code - Article 605 to be precise - was a line that has got Western businesses spooked.

It all revolves around facilitation fees, which are small sums of money you pay civil servants to get things done here - two dollars to buy a copy of a form, for example, another five or ten dollars to file it.

Cambodian civil servants earn paltry salaries - typically between 50 and 80 dollars a month - and they survive by taking cash from the people who need their services, part of the petty corruption that cloaks the country.

Paying those fees is now illegal under Cambodian law. Anyone offering such a payment can be jailed for up to 10 years; anyone accepting one can get 15 years.

Concern Over Liberties as New Penal Code Is Enacted

Seng Kunakar: Arrested and sentenced by a Sunday Kangaroo Court for printing and distributing article posted on KI-Media

Sok Khemara, VOA Khmer
Washington, DC Friday, 24 December 2010

“The penal code comprises a total 672 articles, and among some of those articles, we need to take precautions,” said Run Saray, executive director for Legal Aid of Cambodia.

“Cambodia’s new penal code should have put an end to abusive practices, not encouraged new ones.”

Human Rights Watch has condemned charges of incitement against a man who shared a web article with coworkers as a step back for free expression in Cambodia, while other monitors say the new penal code is cause for concern.

Earlier this month, Seng Kunnaka, an employee of the UN World Food Program, was charged under the newly passed penal code and quickly convicted of incitement, after he shared a story from the strongly anti-government KI Media website with two coworkers. The penal code only went into effect Dec. 10.

He was convicted and sentenced to six months in prison and fined $250 by an extraordinary Sunday court session.

“Cambodia’s new penal code should have put an end to abusive practices, not encouraged new ones,” Phil Robertson, Asia’s deputy director for Human Rights Watch, said in a statement.

Speaking as a guest on “Hello VOA” Thursday, Am Sam Ath, monitoring chief for the rights group Licadho, said the case signaled a “falling down” of the freedom of expression.

“We’ve noticed that there are restrictions on unions, communities, as well as non-governmental organizations, journalists, professors and politicians,” he said. “In total, there have been 50 cases that we consider restrictions on freedoms of expression.”

He encouraged a loosening of such restrictions so that decision-makers can clearly understand the nature of problems within the public and act on them.

Khoun Bunny, secretary-general of the Cambodia-International Federation of Journalists, called the new penal code “a huge obstacle” for freedom of expression.

“Those who have an opposite view are victimized continuously, and journalists are continuously victimized, while the government is please to apply two standards,” he said.

“The double standard, here I want to say that if we speak in accordance with, or exalt and praise the government, then we always receive peace, or no persecution or punishment, but in any case that we have the opposite view, or not paralell with the government, then we are victimized with some fault.”

With Penal Code Coming, Concern From Lawyers

Ministry of (in)Justice. (Original Photo by: By Taing Sarada)

Sok Khemara, VOA Khmer
Washington, D.C Monday, 20 September 2010

“When the law is unclear, it can't be enforced, then it makes people into victims.”

Cambodia is ready to put into effect a new penal code that replaces laws from the Untac era, but lawyers warn that some 300 newly illegal acts could catch people unawares.

The new law, passed last year, will be made effective throughout the country on Nov. 12.

Among other infractions, the new code includes laws against recording phone conversations without permission from the second party, against death threats, public drunkenness, and sexual solicitation via hand waves. It also makes illegal failure to intervene in a suicide in progress; refusal to testify before authorities; and the torture of animals.

“The penal code comprises a total 672 articles, and among some of those articles, we need to take precautions,” said Run Saray, executive director for Legal Aid of Cambodia. “Just a moment ago,” he said, referring to his interview, “there was the issue of recording a voice, which requires permission.”

If the penal code goes ahead as it stands, it will have ignored concerns from civil society over restrictions on the freedoms of expression and assembly.

That includes defamation criminality that could prevent people from speaking out, Run Saray said.

The penal code also remains unclear in certain areas that could provide loopholes for corruption, he said. It also contains “technical words” that could make it difficult to understand by the country's attorneys.

However, he said the new code is good in that it gives more leeway to judges to address cases individually, especially in the abuse of women and children.

Kao Supha, a Cambodian lawyer, said the new code may be difficult for lawyers and judges alike to understand. However, he said it did provide more legal strictures for judges and police.

Sok Sam Oeun, director of the Cambodian Defenders Project, said a code that is difficult to understand will be difficult to follow.

“When the law is unclear, it can't be enforced,” he said. If the law is not properly enforced, “then it makes people into victims,” he said.

It also remains unclear which laws will be stricken from the books and which will remain when the penal code comes into effect, but Kem Sophorn, a judge at the Ministry of Justice, said an implementation law that will be passed soon will clear that up.

Meanwhile, he said, judges, police, prosecutors and clerks have been receiving training on the new penal code.

The code clearly defines newly illegal acts, including provisions for corruption among civil servants, tax evasion, and others, including the torture of animals, he said.

For example, he said, a chicken improperly tied to a motorbike, whose head rubs against the ground, could be grounds for animal torture charges.

CAMBODIA: Rape Victims Need Better Protection from New Penal Code

By Marwaan Macan-Markar

BANGKOK, Mar 9, 2010 (IPS) - Cambodia’s new penal code, which comes into force later this year, should be accompanied by stronger law enforcement measures if the country’s women and girls are to be better protected from rape, says the global rights lobby Amnesty International (AI).

"The introduction of the new penal code is an ideal opportunity to change the culture and improve the criminal justice system," revealed Brittis Edman, Cambodia researcher for AI. "The problem has always been law enforcement rather than the law itself."

"Rape has to be seen as a criminal issue," she added during a telephone interview from Phnom Penh.

The new law will replace the 1992 law introduced by the United Nations after the country returned to peace following over two decades of brutal conflict, including the Khmer Rouge genocide in the 1970s that was responsible for the deaths of 1.7 million people and destruction of the South-east Asian country’s social structures.

Amnesty International’s call for the Cambodian government to address "extrajudicial settlements, weak prosecution and widespread corruption in cases of sexual violence" comes with the London-based body’s launch this week of a report about "rapes of women and girls appear to be increasing."

"From November 2008 to November 2009, police had recorded 468 cases of rape, attempted rape and sexual harassment, a 2.4 percent increase over the previous year," revealed the 60-page report launched Monday in the Cambodian capital. "Data of cases reported to both police and NGOs (non-governmental organisation) indicate that an increasing number of victims are children."

"In 2009, 78 percent of rape victims turning to (a) human rights (NGO) were children, compared to 67 percent in 2008," noted the report, ‘Breaking the Silence – Sexual Violence in Cambodia’. "It is not known if this increase accurately reflects the real situation, or the fact that rape of under-18s is more likely to be reported."

Vanna was among the 30 victims Amnesty researchers interviewed. In 2009, the 15-year-old was raped by a fellow villager. "Her parents reported the crime to the police, who arrested the man," added the report. "However, after court officials and police had negotiated an extrajudicial settlement whereby the perpetrator paid money to the family, he was released."

Her freedom meant that Vanna had to take refuge in a shelter for victims. "I don’t dare to go home. The perpetrator was released because he paid a bribe and that’s not right," she was quoted as having told AI.

Mom was another victim. Two men raped her five times in 2005, when she was 11 years old. "Her mother went to the district police, where the police chief asked her for a 10 U.S.-dollar bribe to pay for ‘the investigation and stationery’," reported AI. "When she did not have the money he requested, the police chief asked her to meet him at a hotel room, suggesting that sex in lieu of money would facilitate the investigation of the rape of the daughter."

"Police initially didn’t help us at all. They are very hard to trust, and you really need NGO assistance to get proper police assistance," the victim’s mother told AI. "We were afraid to turn to the police: we know they harass, intimidate and torture people and extort weak and poor families."

Rape in Cambodia exposes a darker side of the country where "society is still matriarchal, culturally speaking," remarked Chea Vannath, former president of the Centre for Social Development, a Phnom Penh-based think tank. "In majority of families, women are the bosses."

But sexual violence is driven by specific factors, she said during an IPS interview. "Drinking alcohol, pornography, which is widespread, drugs and even poverty are responsible for the violence against women."

Victims from poor families are often unable to get justice, she added, echoing a view maintained by AI, which stated, "Protection of the rights of rape victims in poverty is particularly weak. As the Cambodian justice system displays a bias against the poor, poor women and girls appear to have disproportionately limited access to justice."

AI’s push for stronger laws and enforcement to protect women in Cambodia is also echoed by the United Nations Development Programme (UNDP) in a region-wide assessment to mark International Women’s Day, celebrated on Mar. 8. "While Asia and the Pacific can take pride in the region’s vibrant economic transformation in recent decades, this has not translated into progress on gender equality," the U.N. agency’s assessment said.

"In South Asia, almost half the countries have no laws at all on domestic violence. In the Pacific the picture is even worse, with more than 60 percent of the countries without domestic violence legislation," said Cherie Hart, UNDP’s regional communications advisor.

"In East Asia, the situation is better with more than three-quarters of the countries with drafted legislation on domestic abuse," she explained. "Some of the countries which have drafted legislation within the past few years include Indonesia, Laos, the Republic of Korea, Thailand and Vietnam."

"However, the Asia and Pacific region as a whole falls far behind where it should be on basic issues like protecting women from violence or upholding entitlements to property," she added. "One barrier is from the laws themselves, which may be discriminatory. A second barrier is restricted access to the legal system."

Q&A: ‘Cambodia’s Penal Code Aims to Silence Gov’t Critics’

Cambodian opposition lawmaker Mu Sochua (Credit:Marwaan Macan-Markar/IPS)

Marwaan Macan-Markar interviews MU SOCHUA, Cambodian opposition lawmaker

BANGKOK, Oct 20 (IPS) - To be an outspoken critic of the government brings a heavy price in Cambodia, the South-east Asian country struggling to put behind decades of war and brutality, including the Khmer Rouge genocide.

Journalists, lawyers, lawmakers and activists who have dared have been hit with legal cases by the administration of Prime Minister Hun Sen, whose Cambodian People’s Party (CPP) has dominated power in the still largely impoverished country since the first poll in 1993, which followed the 1991 Paris Peace Accords that helped bring an end to decades of warfare in the country.

Little of that has silenced Mu Sochua, a female parliamentarian belonging to the opposition Sam Rainsy Party. She has fired verbal salvos at the Hun Sen administration in her quest for justice. It is part of an over two-decade-long commitment to improve her war-torn country, beginning in 1991 with a fight for women’s rights.

Sochua was only 18 years old and a fresh high school graduate when the U.S. war in Vietnam spread to Cambodia in 1972, plunging a country that had remained neutral into a conflict that lasted 20 years. She left her country for an education in the West but her parents, who remained, became victims of the Khmer Rouge atrocities.

Sochua, who only returned home in 1989 to help rebuild her country, was in Bangkok recently to speak at a discussion on the space for freedom of expression in South-east Asia.

IPS: The Cambodian National Assembly approved the final articles of your country’s Penal Code this month, bringing to an end the criminal laws that have been in effect since 1992 when the country came under the U.N. Transitional Authority in Cambodia after the peace accords. Isn’t this a progressive step?

MU SOCHUA: I am not okay with this Penal Code because of some of the clauses contained in it on defamation, incitement and insulting public officials. It is very, very vague. The government is looking to give a very wide margin for judges to interpret these features of the law.

These features need to be dropped because of the political and social environment in Cambodia. Every institution in the country is under the control of the ruling party and the prime minister. And the rule of law is very, very weak, and the judges are politically influenced by the prime minister or can be threatened by him. So jurisprudence in this sense has no meaning.

IPS: You give the impression that the new criminal code will be a threat to your country’s young, struggling democracy instead of an effort to strengthen it.

MS: Oh, yes, very much. That is why our party is against this law. The goal of some of the articles is to restrict people making critical comment about civil servants, the police, politicians failing in their duty. It will make it more difficult even for me, for example, as a parliamentarian, to say that a minister is corrupt, because the minister can sue me since my exposure would be an offence under the penal code.

IPS: That should be particularly challenging to you, since you have been quite an outspoken critic of Prime Minister Hun Sen. In fact, you are having a legal battle with him – defamation cases – over a public speech where he insulted you. What are your chances of winning this case?

MS: I would be dreaming if I expect to have the appeal’s court overturn the lower court’s decision, which ruled in favour of the prime minister — unless there is some kind of political negotiations made behind the scene that I am not aware of now.

But this case is not about me. It is the trial of the justice system in Cambodia. I am determined to show to the public, the world, the international donor community that every single step of the judicial process is blocked for me as well as for other Cambodians who have to use the legal system to get redress. This is because of corruption, political maneuvering and the incompetence of the court officials.

IPS: So the promise made to the Cambodian people by the international donors who have aided Cambodia over the past 15 years remains elusive?

MS: The promises made over the past 15 years have failed. In fact, things have moved backwards. The donors who have been sustaining the system must be held responsible. The French and the Japanese who have invested to help reform the judiciary must be asked to explain.

IPS: But aren’t you being a little excessive in your criticism about suppression of critical voices? Some government supporters say you refuse to acknowledge the tremendous growth of newspapers and television and broadcasting stations since peace was restored.

MS: We are not talking about numbers; we are talking about the quality of the freedom of expression. The government is helping the number of media outlets to grow to help with the facade of democracy. It is impossible to criticise the prime minister or the government. If I as an MP go to deal with a situation of violence or land grabbing, listen to the victims, receive complaints and then offer advice to these people, we are accused of incitement.

IPS: Yet Prime Minister Hun Sen has a larger following in the country. His party won last year’s general election, marking the first time that one party had a majority to govern, ending years of fragile coalitions. So, despite what you say, he has the numbers to win elections.

MS: I disagree. The ruling party may have 96 out of 123 seats in our legislature, but look at the actual votes. The CPP got three million votes at last year’s election, the opposition got two million votes, and over one million eligible voters could not vote because their names were not on the voters’ list. They had been taken off the list. My name was taken off the list. So the CPP doesn’t have overwhelming support. The voters’ list needs to be re-examined; the CPP is refusing to let that happen.

IPS: You have been a champion of women’s rights even before you entered politics in 1998. Has the space for women in politics widened and got better?

MS: I think so. There has been a change in attitude not only in the political sphere. I am now the president of the women’s wing in our party, and we want to double the number of women candidates. The CPP has 21 female representatives in the parliament. In fact, they have opened up a lot of opportunities for women. They have a deputy prime minister who is a woman.

IPS: Is Cambodia then heading closer to having its first elected female prime minister?

MS. It is becoming increasingly feasible but not so obvious. I can say it is possible in 10 years from now.

IPS: Will it be you?

MS: (Laughs) You know how old I will be in 10 years, 65.

IPS: What is your answer?

MS: It will be feasible within my party because we are promoting democratic ideas. I could be one of the candidates, but there are other women who are good to qualify.

Cambodia Seeks to Muzzle its Opposition

Monday, 19 October 2009
Written by Bryony Taylor
Asia Sentinel

"A disproportionate use of civil defamation suits by any government has the chilling effect of silencing a political life that for progress must thrive. While Singapore is an economic success, Cambodia is far from it and is yet to be considered an attractive destination for foreign direct investment. A decoupling of defamation from criminal law must coincide with a government taking lessons in constructive criticism. Without this, it is the Cambodia people who continue to lose out with a legislature, executive and judiciary, neither of which are accountable to those they rule."

New criminal libel laws put a serious dent in press freedom

After escorting United Nations officials out of the National Assembly, Cambodia's ruling party last week pushed through a draft criminal code that is regarded as yet another barrier to freedom of speech in a country becoming infamous for silencing opposition members and journalists.

Cambodia is thus in danger of going down the same road as other Southeast Asian countries in making it easier to file bring criminal libel charges designed to stifle dissent, both from the opposition and the press although its English-language newspapers remain relatively free today.

None of the members of the UN Human Rights team were allowed back into the Assembly during the debate on the code, and the television feed conveniently broke down during discussions on the code's most contentious issues regarding defamation. Ruling party members blamed the UN altercation on a change in visiting procedure paperwork and the television interruption on external feed problems.

"We did not throw them out," said Chheang Vun, Cambodia's former ambassador to Geneva. "The secretary-general for the National Assembly banned them from getting in." He warned that the situation should not be used for political gain by opposition lawmakers.

Since April 2009 the UN Office of the High Commissioner for Human Rights has noted that Cambodia's government has lodged eight separate criminal defamation and disinformation complaints against opposition lawmakers, protesting civilians and newspaper editors. Two Khmer language newspapers have been forced to close after their editors were sued, and separately a student was arrested for spraying anti-government slogans on his house.

Under the new draft criminal code, media defamation cannot be considered a criminal offense and will instead be covered by Cambodia's press law. Anyone other than journalists may face fines of between $25 and $2,500 for public defamation, which the code describes as "all exaggerated declarations, or those that intentionally put the blame for any actions, which affect the dignity or reputation of a person or an institution."

Individual interpretation of these words could well lead to further curtailing of critics' remarks.

"It is a shame that the authorities did not take advantage of the drafting of the new Penal Code to remove defamation," said Brittis Edman, Amnesty International's Cambodian Researcher. "We have long called for a decriminalization of defamation; the criminal justice system is not the appropriate channel for resolving defamation cases; they are better settled under civil law and should not violate the freedom of expression."

"[The code] currently includes a number of provisions which unduly restrict freedom of expression," said the British human rights group Article 19, which lobbies for freedom of speech. It also pointed out that the broad defamation statute also appears to leave out truth as a defense against defamation charges.

"These rules should apply only to incorrect factual statements made without reasonable grounds. It should not be an offence to make a defamatory statement which is true or which is a reasonable opinion," it said.

The Washington, DC-based Tom Lantos Human Rights Commission convened a meeting last month in Phnom Penh to discuss Cambodia's situation regarding freedom of expression. Testimony by three prominent Cambodians — opposition SRP lawmaker Mu Sochua, labour advocate Moeun Tola and Kek Pung, founder of Licadho, a domestic NGO — detailed a litany of lawsuits filed by members of the ruling party curbing free speech similar to the methodology of Malaysia and Singapore's previous use of defamation.

Hun Sen's ruling CPP party rejected any accusation put forth at the hearing regarding the abuse of human rights in the country, condemning Sochua particularly for giving ‘false testimony' in a biased and misleading manner. They also highlighted Cambodia's free press.

Sochua was convicted for defaming Prime Minister Hun Sen in a ‘he said, she said' battle of lawsuits, which she faced without a lawyer after her representative was threatened with the loss of his career. Hun Sen famously insulted a strong and prominent woman widely believed to have been Sochua with the colloquial insult "cheung klang" — strong leg — in a nationally broadcast speech on April 4 2009.

She filed a defamation suit soon after. Hun Sen however, countersued on the basis that her filing against him was itself defamation and countersued. Her case was dismissed and she lost her defense, leaving her to appeal against the conviction fine of 16.5 million riels (US$3,971).

Sochua has embarked upon a battle for freedom of speech with considerable fire and PR savvy more often seen in the West. Such has been her success in bringing attention to what she calls Cambodia's "sham democracy" that delegations from the EU, a new and more forthright UN human rights rapporteur and countless damnations from NGOs and human rights groups have questioned her treatment. The US embassy in Phnom Penh has been ordered to monitor her safety and report back. But will it make a difference? History says not.

While Cambodia's Asean neighbors Singapore and Malaysia have a long history of using similar methodologies to curtail criticism and Indonesia's criminal defamation laws have the potential to bring editors to bear, according to Human Rights Watch, compared to their Asean neighbors governmental critics in Cambodia face greater penalties and actual fear of violence.

Brad Adams, HRW's Asia Director said: "Sadly, democracy is not a term I would apply to Cambodia. Aside from having elections every five years, almost all the other elements are missing. The trend is negative and with the continuing consolidation of power by Hun Sen, not least in the military, it is hard to see the trend reversing. Hun Sen has shown little ability to change over the years, to become more tolerant of criticism, less autocratic and work to create enduring, competent and independent institutions. Massive corruption and greed among those in power is at the heart of the problem, yet no steps are being taken to address it. It is depressingly similar to what has happened in Malaysia and Singapore over the years."

In an Amnesty International report concerning the actions of the Singaporean government during the period, the NGO highlighted the very same concerns that are repeated in Cambodia today. "The intended [and expected] effect of these suits, it is believed, has been to inhibit the public activities of opposition politicians."

There is very little difference between this and the ongoing actions in Cambodia, Mu Sochua says. "When [the] government of a non or semi-democratic regime is in control of the judiciary, their opponents will continue to be victims of such a lack of independence in the judiciary. However, by continuing to pursue this practice, the leaders in power will discredit themselves at the end. I believe that there will be a break point but it has to be worse before it can be better." She added that while total judicial forms were unlikely without a change in leadership, she hoped aid donors would only provide further help on a conditional basis tied to freedom of speech.

A disproportionate use of civil defamation suits by any government has the chilling effect of silencing a political life that for progress must thrive. While Singapore is an economic success, Cambodia is far from it and is yet to be considered an attractive destination for foreign direct investment. A decoupling of defamation from criminal law must coincide with a government taking lessons in constructive criticism. Without this, it is the Cambodia people who continue to lose out with a legislature, executive and judiciary, neither of which are accountable to those they rule.

Penal Code – Freedom of Expression in Jeopardy: CCHR

Cambodian Center for Human Rights

PRESS RELEASE
PHNOM PENH, Friday 16th October 2009

PENAL CODE – FREEDOM OF EXPRESSION IN JEOPARDY

The Cambodian Center for Human Rights (“CCHR”) is concerned at provisions in the Penal Code which jeopardise the constitutionally guaranteed right to freedom of expression and call on the Royal Government of Cambodia (“RGC”) to bring the embryonic code into line with international standards. Recalling that – via Article 31 of the Constitution of the Kingdom of Cambodia – international law is part of Cambodian law, we note the following concerns:

• Inclusion of the crime of Defamation;
• Use of vague terminology, creating ambiguity and the possibility of abuse of the law;
• Excessive penalties and imposition of the same penalty for attempts to commit a crime as for the crime itself;

The continued Criminalisation of Defamation

Notwithstanding Prime Minster Hun Sen’s 2006 pledge to decriminalise defamation, the offence remains in the Penal Code. Statements by the United Nations (UN) Human Rights Committee of the International Covenant on Civil and Political Rights (ICCPR) support the view that charges of defamation and disinformation should be brought under civil, not criminal, proceedings. This position was reinforced by the Special Rapporteur for Human Rights in Cambodia, Professor Surya Subedi in his recent address to the UN Human Rights Council in Geneva. Accordingly, CCHR calls for the removal of the offence of defamation from the Penal Code to bring Cambodian domestic law into conformity with international principles.

Vague and ambiguous terminology and judicial interpretation

CCHR believes that the vague and ambiguous terminology in the Penal Code creates a lack of clarity in the law, leaving it open to judicial interpretation and potential abuse, for example:

• The Penal Code should differentiate between private persons and those holding public office, bringing it into line with international principles, such that those in public office accept lower immunity from scrutiny, in the interests of open debate and a strong democracy.
• To ensure consistent application and avoid abuse of the law, definitions must be included in the Penal Code itself, rather than training judges to use explanatory notes on each article as suggested by Secretary of State at the Ministry of Justice Hy Sophea.
• Crimes concerning national security should include a public interest override, criminalising only those acts carried out with the intention of undermining national security.
• A standardised system of classification for information of a national security character should be established to remove uncertainty over what the national security provisions of the Penal Code apply to.

Excessive penalties

CCHR is alarmed at the inclusion of excessively harsh penalties throughout the Penal Code, as follows:

• Inclusion of the same penalty for attempts to commit a crime as for commission of the crime itself is disproportionate to the act and inconsistent with international law.
• The penalty of prevention from practicing ones profession should be removed from the Penal Code, such a provision can only serve to deter open and free debate.
• The penalties that can be imposed for any given offence should be limited in number and proportional to the act in question.
• Offences concerning publication of commentaries relating to court proceedings should be restricted to statements intended and likely to undermine the administration of justice. The current provisions in this regard represent a serious prohibition on freedom of expression.

Failure to bring the Penal Code into line with International Law on freedom of expression

CCHR is concerned that the Penal Code fails to bring Cambodian law into line with International Standards. We recall that:

• The definition of Freedom of Expression as per Article 19 (2) of the ICCPR, includes the freedoms to “seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” We opine that the Penal Code should fully reflect this definition, leaving no room for abuse for silencing discussion and debate.
• Article 19 (3) of the ICCPR provides for a proportionality test to ensure an appropriate balance between the right to free expression on matters of public interest, and the protection of individual reputation that necessitate restrictions to freedom of expression. This balance has not been met in the Penal Code, which is tilted in favour of immunity from scrutiny on the part of politicians. This imbalance can only restrict democratic debate to the detriment of Cambodian citizens and the development of a pluralist society founded upon openness to scrutiny, discussion and debate.

Recalling that Article 31 of the Constitution of the Kingdom of Cambodia enshrines into Cambodia law International Human Rights law - namely the Universal Declaration of Human Rights and the ICCPR and the definitions of Freedom of Expression contained therein

CCHR invokes the Human Rights Council to the ICCPRs’ General Comments, crucially:

• “[W]hen a State Party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself.” And further, that “in no case may...restrictions be applied or invoked in a manner that would impair the essence of a Covenant Right.” The Penal Code - with its excessive restrictions - clearly put the right to freedom of expression in jeopardy, impairing the essence of the right by curtailing the scope for citizens of Cambodia to engage in active debate with the RGC.
• “[I]t is the interplay between the principle of freedom of expression and...limitations and restrictions which determine the actual scope of the individuals right” In this context, the Penal Code’s restrictions to freedom of expression – notably concerning individuals in relation to the crime of defamation – set the scope of the right far more narrowly than what is provided for in ICCPR Article 19.
• Furthermore, “...a general obligation is imposed on all State Parties to respect the Covenant Rights and to ensure them to all individuals in their territory...” This obligation is all the more pertinent under Cambodian Law as a result of Article 31 of the Constitution, and is currently being violated by the Penal Code’s restriction upon freedom of expression.
• This provision is reinforced by Article 26 of the Vienna Convention on the Law of Treaties which states that: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” CCHR contends that by passing of the Penal Code in its current form, the RGC fails to uphold the principle of good faith, instead placing severe restrictions upon the exercise of freedom of expression which contravene the right to freedom of expression as defined in ICCPR.

In relation to the applicability of international law, the Cambodian Constitutional Council clarified in 2007 that the judiciary should rely not only upon domestic law, but also the international treaties which Cambodia has accepted. This is fundamental, clarifying as it does the integral role international law plays in the promotion of justice in Cambodia. It is of utmost importance for justice in Cambodian that our laws – and particularly legislation as far reaching as the Penal Code – conform with international law and the treaty commitments Cambodia has undertaken.

In light of the above concerns and given the importance of getting the Penal Code right, we call upon the RGC to heed our concerns and seize the opportunity for critical reflection upon the Code, taking into consideration human rights concerns and an overriding desire to foster principles of democracy in Cambodia. The CCHR supports the efforts of the RGC in clarifying the criminal laws of Cambodia but this must not be done at the fatal expense of expression, discussion and debate. To leave the Penal Code in its current form would establish the principle whereby open journalism is prevented. Such an approach to accountability will be extremely detrimental to a nascent democracy such as our own.

In its current form, the Penal Code contravenes international law on freedom of expression. Consequently, it must be brought into conformity with the Cambodian Constitution through amendments that fully incorporate the standards established in ICCPR and pronouncements made by the Human Rights Council. The CCHR implores the RGC not to lose sight of the principles of justice and human rights upon which this country is based and to make the necessary changes to the Penal Code so as to bring it into line with International Law and the Constitution of the Kingdom of Cambodia.

Critics say Cambodia's new penal code a threat to free expression

16 October 2009
Southeast Asian Press Alliance (SEAPA)

Civil society groups and opposition lawmakers in Cambodia expressed concern that the newly-passed penal code would pose a threat to free expression.

The Cambodian Center for Human Rights (CCHR) said the new criminal code's provisions for defamation "jeopardize the constitutionally guaranteed right to freedom of expression" and called on the government to bring the new law into line with international standards.

The National Assembly passed the law on 6 October 2009, with the provisions on free speech passed by a vote of 82-21.

CCHR said defamation remains a criminal offense, despite Prime Minister Hun Sen's pledge in 2006 to decriminalize it.

Though the penalty for defamation is between 100,000 and 10 million riels (US$24 and $2,394)—lower than those in the 1992 UNTAC Law—MP Mu Suchoa from the opposition Sam Rainsy Party said that ordinary people will be at the receiving end of the law's penalties.

"Powerless people will be vulnerable under the new penal code whenever they speak out concerning land disputes, legal issues or corruption," she said.

Also, the CCHR described as "excessively harsh" the penalties for the provisions concerning free expression. It said the penalty for attempts to commit a crime and for commission of the crime are the same.

It also criticized the penalty of preventing one from practicing his profession. "Such a provision can only serve to deter open and free debate," CCHR said in a statement.

The "Phnom Penh Post" also quoted Ny Chakrya, head of monitoring for the rights group Adhoc, on his thoughts about the new law.

"Those of us who are members of the civil society community are very concerned about how limitations on freedom of expression will affect our advocacy work when we criticise government institutions and government officers," he said.

The CCHR also aired its concern on the vague and ambiguous terminology in the Penal Code that "creates a lack of clarity in the law, leaving it open to judicial interpretation and potential abuse."

In an interview with the "Phnom Penh Post", Mu Suchoa said that the administration lawmakers have pushed through with the passage of the law with its questionable provisions in order to protect themselves from allegations of corruption and restrict the activities of the opposition.
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The Southeast Asian Press Alliance (http://www.seapa.org) is a coalition of press freedom advocacy groups from Indonesia, the Philippines and Thailand. Established in November 1998, it is the only regional network with the specific mandate of promoting and protecting press freedom throughout Southeast Asia. SEAPA is composed of the Alliance of Independent Journalists (Indonesia), the Jakarta-based Institute for the Study of the Free Flow of Information (ISAI), the Manila-based Center for Media Freedom and Responsibility, the Philippine Center for Investigative Journalism, and the Thai Journalists Association. SEAPA also has partners in Malaysia, Cambodia, East Timor, and exiled Burmese media, and undertakes projects and programs for press freedom throughout the region.

For inquiries, please contact us at: seapa@seapa.org, or call +662 243 5579.

Penal Code Insufficient Under Accords: Rights Leader

By Sok Khemara, VOA Khmer
Washington
13 October 2009

A leading Cambodian rights advocate said Monday the penal code passed by the National Assembly does not meet the requirements of the 1991 Paris Peace Accords, as it does not sufficiently safeguard freedoms of assembly and expression.

“I see that some of the articles are still of concern,” said Pung Chiv Kek , founder of the rights group Licadho, as a guest on “Hello VOA.”

The National Assembly passed the new penal code on Monday, but it mostly ignored recommendations from civic groups, she said.

Groups sent “46 points to the National Assembly…but none of it was considered,” she said, including that defamation not be a criminal charge.

In signing the Peace Accords in October 1991, Cambodia signed onto many conventions and treaties meant to follow human rights norms, including rights in politics, assembly, information, speech and expression, she said.

Laws limiting freedoms can hurt development, she added, as sometimes people need to voice their concerns if they find themselves victims of legal violations.

Still, she thanked the government for passing the code, an improvement over Untac laws that had been followed in the meantime.

National Assembly Approves Penal Code

By Chun Sakada, VOA Khmer
Original report from Phnom Penh
12 October 2009

The National Assembly on Monday passed a crucial penal code that government officials hailed as historic, but which others warn could be used to curb freedoms.

Prime Minister Hun Sen has said the passage of the penal code was a prerequisite to a much-awaiting anti-corruption law that donors have pressed for in recent years.

The penal code passed 99-3, following an eight-day debate.

Addressing the National Assembly Monday, Justice Minister Ang Vong Vathana called the day “historic” for “supporting the process of the rule of law.”

“The passage of the new penal code shows the strong commitment and will of the government in building a legally strong and detailed framework for the basis of the rule of law for our country,” he said.

Opposition lawmakers had argued the law did not uphold rights to free speech and assembly, making it easy for defamation and other attacks in the courts.

Yim Sovann, a spokesman for the Sam Rainsy Party, said its lawmakers “would like to completely support the penal code…but we still have worries about some articles relating to freedom of expression and assembly.”

Kem Sokhan, president of the Human Rights Party, whose three parliamentarians did not vote for passage of the law, called the draft a “two-faced weapon” that could condemn offenders of the law, but, improperly weilded, “could affect the rights and freedom of expression for people.”

However, Sok Eysan, lawmaker for the Cambodian People’s Party, said during Monday’s session the party hoped the law would take away problems that “used to appear,” such as defamation and incitement.

Sok Samoeun, executive director of the Cambodian Defenders Project, said a weak judiciary was still a concern with the new law.

“We await implementation of the penal code,” he said.

Anti-graft legislation in sight: govt [- In another 10-year time?]

Thursday, 11 September 2008
Written by Thet Sambath and Chun Sophal
The Phnom Penh Post

Passage of penal code hoped to lead to anti-corruption law

THE Council of Ministers is in the process of reviewing a new draft penal code, the passage of which will pave the way for the Kingdom's long-delayed anti-corruption legislation.

But with only 40 of some 700 articles examined so far, critics say this is just another ploy to avoid passing the graft-busting decree, which has been a key demand of foreign donors.

"The Council of Minister currently has reviewed more than 40 articles of the 700 articles of the draft penal code," Deputy Prime Minister Sok An told a conference Monday.

"After reviewing the draft [penal code] the government will continue to inspect the anti-corruption law," he added, without specifying a date that the review would be completed.

Sam Rainsy Party lawmaker and spokesman Son Chhay said that while the opposition welcomed the review of the draft penal code, they urged the government to finish the job "sooner rather than later".

"We are very worried as this fourth-term government has more than 500 members," Son Chhay said. "If we have don't have an anti-corruption law and penal code, we will have difficulty punishing corrupt officials," he added.

Ny Chakrya, head of the monitoring section for the rights group Adhoc, said, "[Reviewing the penal code first] is the CPP's pretext to avoid making the anti-corruption law. They have a real purpose to delay [this] debate."

According to Ny Chakrya, the government's lacklustre commitment to passing anti-corruption legislation is shown in the fact less essential laws - such as one banning adultery - were passed first.

Bun Uy, secretary of state for the Council of Ministers, told Post by phone Tuesday that government has no reason to delay the passage of the anti-corruption law. "We need to pass the new penal code first because punishing crime is related both to the penal code and the anti-corruption law," he said.

Unless the penal code was passed first, the anti-corruption law could end up conflicting with it, he said. "The relevant ministries are working very hard and had discussed this week [how to expedite the passage of] the penal code.

It's OK for the Czech to adopt a penal code like Cambodia, but hopefully it won't follow the example of Cambodia notoriously corrupt judicial system

Czechs should follow Cambodian example -- Sudeten German leader

15.6. 2007
Author: ČTK
ČeskéNoviny.cz (Czech Republic)

Vienna - The Czech Republic should follow the example of Cambodia when dealing with its past, Gerhard Zeihsel, head of the Sudeten German Landsmannschaft in Austria, said today.

Zeihsel stressed that a new penal code was passed in Cambodia in recent days. Though with a several-year delay, it still allowed for the prosecution of the Khmer Rouge leaders from the 1970s, he added.

The developments in Cambodia should encourage the Czech Republic to cancel the 1946 amnesty law, Zeihsel said.

Under the legislation, all crimes committed on Sudeten Germans in 1945 were not punishable.

Zeihsel demands that "all the legislation be cancelled so that all perpetrators of the genocide on Sudeten Germans could be made accountable for their acts."

According to Czech authorities, the law amnestied the violations of the law arising from the anti-Nazi resistance and only partly related to the time of post-war deportation of Germans from Czechoslovakia.

If the law were cancelled, all anti-Nazi acts made within the resistance would automatically become illegal, which is unacceptable, Czech lawyers said.

The regime of Khmer Rouge, ruling in Cambodia in 1975-1979, killed some 1.7 to 3 million people.

Last year, the Cambodian government decided to establish a special international tribunal to try genocide crimes committed by the Khmer Rouge. It is to start working next year.

Some three million ethnic Germans were deported from post-war Czechoslovakia and their property was confiscated. Their leaders say that serious atrocities were committed during the transfer, which has been largely denied by Czech authorities.

Lawyers Address Penal Code, Tribunal on 'Hello VOA'

Khemara Sok, VOA Khmer
Washington
04/06/2007

Ang Udom, head of the legal unit for the Center for Social Development, and Ouk Vandeth, a lawyer for the International Bridge of Justice group, said Monday they shared a concern with other groups that a newly drafted penal code could outstrip a Khmer Rouge tribunal.

The tribunal, which was formed under the old laws, could run into snags once the new penal code passes debate in the National Assembly, they said.

The draft law will be effective immediately following its passage, Ang Udom said, leaving little time to solve conflicts between the law and the tribunal.

Ouk Vandeth said he wasn't as concerned about the tribunal as he was for the Cambodian courts and people. In a draft of the law, he said, was less freedom for the defendant's rights to a lawyer and provisions for longer detention without trial.

The new law allows detention of suspects for up to 48 hours without a lawyer present, twice the time of the current law. In 48 hours, the lawyers said, a suspect could be coerced into a confession, among other abuses.

Ang Udom said the court was only an institution, and its independence was up to individual judges and prosecutors. He encouraged victims of crimes to speak out.

National Assembly Aims to Pass Penal Code

Mean Veasna, VOA Khmer
Original report from Phnom Penh
23/05/2007

The National Assembly Wednesday began debate over a long-awaited penal code, aiming to officially pass into law regulations that has been followed on an ad hoc basis for a decade.

Cambodia will get help from France and Japan on a law that covers duties of authorities, nature of charges and the role of investigation and interrogation in the judiciary. It also limits the roles of prosecutors, judges and police.

The law enables the wire tapping or electronic surveillance of suspects by investigating judges.

"The penal code legislation is a very special instrument for criminal cases," Ministry of Justice Secretary Y Dan said. "The new penal code legislation is a measure for special law enforcement people to use, meaning the courts."