CAMBODIA: Unlawful arrest of a newspaper editor in Phnom Penh

Dear friends,

The Asian Human Rights Commission (AHRC) is deeply concerned that Dam Sith, the editor of Moneaksekar Khmer newspaper, was arrested on charges of alleged defamation, insult and disinformation on 8 June 2008. Dam has been facing a criminal lawsuit after his newspaper published an opposition politician’s remarks about the Khmer Rouge affiliation of a government minister in April 2008.

CASE DETAILS: (Sources: Ms Meas Chan Kanha, Dam Sith’s wife; Pech Norak, Moneaksekar Khmer Newspaper; Chou Chung Ngy, Dam Sith’s defence lawyer)

On Sunday, 8 June 2008 at around 11:30am 10 military police officers, some in uniform and the others in plain clothes, arrested Dam Sith, 39, editor of the Moneaksekar Khmer(Khmer Conscience) newspaper, at a car wash named Meas Sitha, in Tuol Sanke commune, Tuol Kok district, in Phnom Penh. Dam was taken to the Military Police Headquarters in Tuol Kok for questioning. At around 3pm he was brought before the Municipal Court of Phnom Penh.

In court, after questioning Dam in the presence of his lawyer late that afternoon, the investigating judge, Chhay Kong, issued an order to remand him in custody at Prey Sar prison on the outskirts of Phnom Penh for pre-trail detention. The judge’s reasons for Dam’s pre-trial detention were (1) to prevent any harassment of witnesses or victims or prevent any agreement between him and any accomplice; and (2) to guarantee his appearance in court. He was charged with alleged defamation, insult and disinformation.

Dam’s arrest followed a criminal lawsuit against him filed on 25 April by Hor Nam Hong, current Cambodian Foreign Minister following his newspaper’s publication, in its 18 April 2008 issue, of the remarks made by Sam Rainsy, leader of the opposition Sam Rainsy Party (SRP) about the Khmer Rouge affiliation of two current government ministers. Sam had made these remarks the day before at a religious ceremony commemorating the death of nearly two million people under Pol Pot’s Khmer Rouge regime between 1975 and 1979. Dam’s newspaper subsequently published stories related to the same remarks and a criminal lawsuit filed by a concerned minister against Sam.

In its 18 April issue, Moneaksekar Khmer wrote, among other things, that  “Mr. Sam Rainsy said further that there are at least a senior minister and a deputy prime minister of the current ruling party who used to be Pol Pot’s secretary and advisor-interpreter. Mr. Sam Rainsy added that now Pol Pot’s advisor and secretary, Mr. Keat Chhun, is (current) senior minister of economics and finance, and another person, Mr. Hor Nam Hong, (current) deputy prime minister and minister of foreign affairs, used to be head of (Khmer Rouge) Boeung Trabek prison (in Phnom Penh). Being head of Boeung Trabek prison, he (Sam Rainsy) continued, was not just by chance. It required the appointment by the Khmer Rouge to be head of Boeung Trabeck prison as the head of that prison had a lot of power. That was why they (people in the government) did not want the trial of those Khmer Rouge leaders (alluding to the government’s repeated delays in organising that trial). They feared Khieu Samphan (a Khmer Rouge leader now awaiting trial) would denounce them. That was why they let the aged Khmer Rouge leaders die naturally so as to prevent them from speaking the truth.” 

Hor Nam Hong, and not Keat Chhon, filed a criminal lawsuit against Sam Rainsy on 22 April and also against Dam Sith for defamation and disinformation a few days later, on 25 April. On 5 June Dam went to testify as summoned by the court and on 8 June he was arrested and remanded in custody to Prey Sar prison. Sam Rainsy, a Member of Parliament, has neither testified in court as summoned nor been arrested. 

BACKGROUND INFORMATION:

Moneaksekar Khmer newspaper is widely known to be supportive of the opposition Sam Rainsy Party (SRP). It is very critical of government policies, corruption and land grabbing by the rich and powerful. Dam stands in the forthcoming general election to be held on 27 July 2008, as an SRP candidate for Phnom Penh constituency. Dam had faced such a law suit before in September 2006 for exposing alleged corruption of another deputy prime minister (see UA-313-2006).

There is no freedom of the press in Cambodia. Although there has been no lawsuit against journalists for defamation and disinformation for some time, there has still been threats and intimidation against journalists, bans on publications or confiscation of newspapers (see AHRC-UAU-022-2008). On 28 May 2008 the ministry of information cancelled the license granted to a private radio station broadcasting in Kratie province for the sale of its airtime to political parties.

Apart from the court case against the SRP leader, there is another court case pending at the Supreme Court in which another opposition politician, Prince Norodom Ranariddh, leader of yet another self-named Norodom Ranariddh Party, is appealing against his conviction by the Municipal Court of Phnom Penh and the Appeal Court for alleged breach of trust over the management of the assets his former party, FUNCINPEC. Ranariddh has been living in exile since the beginning of the case against him. FUNCINPEC is an ally of the ruling Cambodian People’s Party in the current coalition government.

Ranariddh is Prime Minister Hun Sen’s arch enemy. Due to this enmity and the executive control of the judiciary, there are allegations that the delay in the Supreme Court’s hearing of his case is meant to prevent Ranariddh from returning to Cambodia and compete in the July election.

A characteristic feature of the Cambodian judicial system is judicial inquiry whereby criminal investigation is conducted by judges called investigating judges. The police bring a suspect to the prosecutor who decides whether to lay any charge against him or her. If so, and if the case requires further investigation, the prosecutor sends the case and the accused person to an investigating judge for investigation. This judge then decides whether to remand the accused person in custody awaiting trial (pre-trial detention). Investigating judges can delegate their power to the police to conduct investigation, but not to interrogate accused persons.

ADDITIONAL COMMENTS:

The Asian Human Rights Commission (AHRC) is of the view that there are no legal grounds for Dam’s arrest and detention. In the first place, Moneaksekar Khmer’s alleged defamatory publication is, if proven, but “false information or imputation” against a “public figure” which the Cambodian Press Law of 1995 (Article 10) treats as “libel” and prohibits. But this law is silent whether libel is a criminal offence. It provides, though, for civil action to get the court to order the press to publish a retraction or pay compensation, or both, on top of the right of the person whose honour or dignity is harmed by false publication to reply, demand retraction form the press and sue it for defamation, libel or humiliation.

However, the Cambodian criminal law, commonly known as UNTAC Law, provides for no such specific criminal offences as libel or humiliation. This law provides for defamation and insult which are punishable by a fine but no custodial sentence. According to the Cambodian Code of criminal Procedure (Article 204), without any charge of a crime punishable by imprisonment for one year or more, a person cannot be detained. Dam Sith’s detention is therefore unlawful. It is illegal confinement which is punishable by imprisonment for between 3 and 10 years (UNTAC Law, Article 35).

Apparently, the plaintiff and the investigating judge wanted to lock Dam up so they have charged him with disinformation, which is a practice after the removal of a custodial sentence was removed from defamation and insult in 2006. Disinformation is punishable by imprisonment between 6 months and 3 years.

However, when ordering Dam’s pre-trial detention, the judge ignored one of the constitutive elements of the crime of disinformation stipulated under Article 62 on this crime of the UNTAC Law. This article says that the publication, distribution or reproduction (of information which is false, fabricated, falsified or untruthfully attributed to a third person) “has disturbed or is likely to disturb the public peace”.

The judge ignored that from the date of the publication of Sam Rainsy’s remarks, that is, from 18 April 2008 until the date of Dam Sith’s arrest, in Phnom Penh or elsewhere in Cambodia, no “public peace” was “disturbed” in the first, and least of all, there was no disturbance whose cause could be attributed to that publication. The charge of disinformation is groundless.

Dam’s detention on this groundless charge is not simply a violation of the general principle of granting freedom to accused persons as clearly spelled out in the same criminal procedure code (Article 203), but is itself unlawful.

Dam Sith’s arrest and detention came at a time when preparations for the July election were underway. It can only further compromise this election which has already been marred by the criminal court cases involving two opposition leaders, Sam Rainsy and Ranariddh, and by a series of obstructions to and violence against non-ruling parties.  According a group of civil society organizations, during the period of January 2008 – May 2008, there were five cases of political killings, 21 cases of harassment of and threat against party activists and 15 cases of dismantling of party banner signs.

The AHRC is therefore of the view that Dam Sith’s arrest and detention are unlawful, violate the constitutional right to press freedom, and comes to mar further the election whose campaign has already been under way.

SUGGESTED ACTION
Please write your letters to the authorities listed below to urge them to immediately release Dam Sith from detention.

The AHRC has also written to the UN Working Group on arbitrary detention and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression for their intervention in this case.

To support this case, please click here: SEND APPEAL LETTER