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.
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