Under sustained international pressure, the government of Cambodia on April 21 decided to remove the custodial sentence of eight days to one year for defamation under article 63 of the 1992 criminal law, commonly known as the UNTAC Law.
This is a positive development and should be welcomed, especially after a year of widely-condemned repression during which time Prime Minister Hun Sen used the defamation law to arrest opposition politicians and human rights defenders, silencing government critics and worsening the already endemic fear found among the Cambodian people.
However, responses should be extremely cautious, as the law remains an instrument for ready denial of freedom of expression and is full of ambiguities. To begin with, there is still a strange discrepancy found between the English and Khmer versions of article 63. The former clearly defines defamation as any “bad faith allegation or imputation of a given fact which harms the honor or reputation of an individual”. The Khmer version of the same article contains a problematic phrase to the effect that any “act that troubles such an individual” is defamation. The law also does not spell out whether such an allegation or imputation, if true though made in bad faith, is still defamation. However, it is clearer with regard to an allegation or imputation against a public figure: it is defamation when such an allegation or imputation has been “known to be false”. But the law does not define who is a “public figure”, leaving the door open for anyone working in the public sector, from petty functionary to prime minister, to claim to be one. Likewise, according to the same article, any insult, contemptuous remark or abusive language which does not claim to impute any fact also constitutes defamation. In Cambodian political culture a criticism or expression of contrary opinions can easily be interpreted as an insult, contemptuous remark, or abusive language under such a provision.
Persons found guilty under the law are still subjected to large fines, and pecuniary damages remain undetermined. In Cambodia, imprisonment is used to coerce a guilty defendant to pay fines or meet pecuniary obligations. And for so long as law enforcement agencies, the prosecution and the courts are under political control there will be a well-founded fear of facing lawsuits, heavy fines, and pecuniary damages coupled with coercive imprisonment. Prime Minister Hun Sen has already wasted no time in warning the press of defamation lawsuits under the newly-drafted law.
The new law on defamation is a small step on the road towards its complete decriminalisation. But it fails to ease the fear among Cambodians who may be the targets of law suits. It continues to restrict freedom of expression and to deter long-suffering people from exercising their constitutional rights.
The Asian Human Rights Commission (AHRC) continues to hold that only complete decriminalisation of defamation can promote freedom of expression and build a democratic society in Cambodia. While appreciating the prime minister’s commitment to decriminalise defamation completely at a later time, it sees no reason for delay. It is also concerned that regulations are still in effect, such as the joint guidelines for courts issued by the Ministry of Justice and the Supreme Court on March 14, which provide for the enforcement of criminal defamation. The continued application of such regulations causes confusion and allows for circumstances in which the freedom of expression may be easily undermined.
The AHRC is also concerned that when defamation is a civil matter there should be a low ceiling for pecuniary damages, and imprisonment to coerce defendants to pay these damages should be abolished. There should be a clear definition of “public figures” and contrary to the existing arrangements these persons should be expressly prohibited from initiating libel suits.
Finally, the AHRC urges the international community, especially France and Japan–which are directly involved in the drafting of new penal and civil codes for Cambodia–to actively engage the government of Cambodia with a view to ensuring that principles of freedom of expression are upheld through much-needed reforms. It further urges the Cambodian courts to end immediately all pending criminal proceedings against those who had been sued for defamation and who have been released on bail. These proceedings should not and cannot be used to silence these persons any longer.
