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.

Mua 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.