Tuesday, January 15, 2013

Prime Minister of Cambodia wants Law to Stop Personal Insult

What is the nature of Law to Stop Personal Insult?
During speaking at a graduation ceremony at National Institute of Education, on January 14, 2013, Prime Minister Hun Sen suggested the National Assembly to adopt the law on Stop Personal Insult in order to put pressure against politicians who criticize against each other during forthcoming national election in July this year.
What is the background for Prime Minister to propose to draft this law? Is it necessary to have such law for this time? If it’s adopted this law, is it affect to freedom of expression which guaranteed by Cambodian Constitution or International Instruments or not?
It has many significant issues happening but it might happens upon the people who have opposite idea with him by attacking wording against him through media, audiovisual like internet, radio and so on. The opposition website like http://ki-media.blogspot.com/; https://www.facebook.com/KhmerIntelligence?fref=ts always criticizes and attack against Hun Sen by using the bad words—sell land to Vietnam or betray of nation etc. However, opposition people can spread their opinions through internet or little radio only because they have little space to do it. All broadcast system (TV and radio) included public and private stations are controlled by government. It might be said that it’s unfair for opposition persons who are shut their mouth to criticize against government’s officials in order to improve everything in the country.
A) Legal Basis
Even they have freedom to criticize against government; the opposition persons shall follow and respect the existent law in Cambodia such as Cambodia Constitution (CC). In article 41, CC state clearly that the people can use their freedom of expression to not affect other reputation, good traditional, PUBLIC ORDER and or national security. This article doesn’t state the type of person’s reputation should be protected. It can say that if someone insults someone about something which affect one’s reputation, it’s should be punished. The International Covenant on Civil and Political Rights (ICCPR), which Cambodia ratified, provide for the same freedom and limitations.  Article 19 states:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom 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.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by LAW and are NECCESSARY:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
It’s every restrictive for government that wants to recreate one law to restrict the freedom of expression. If the new draft law adopted, it might contradict with international instrument.
What is Public Order?
There is no definition clearly within Cambodian Law System on this matter but it’s state in general comment of UN United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984). It’s state that The expression "public order (ordre public)" as used in the Covenant may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded. Respect for human rights is part of public order (ordre public).
Public order (ordre public) shall be interpreted in the context of the purpose of the particular human right which is limited on this ground.
State organs or agents responsible for the maintenance of public order (ordre public) shall be subject to controls in the exercise of their power through the parliament, courts, or other competent independent bodies.”
Criminal Code
Derived from Cambodian Constitution, Criminal Code was adopted by National Assembly in 2009, which stated in article 305
In Criminal Code, Article 305:
All allegation or imputation in bad faith of an act that affects the honor or reputation of an individual(s) or institution is defamation.
Defamation committed by any of the following means shall be fined 100,000 riels to 10,000,000 riels:
                                  i.      words, regardless of nature, that are uttered in public place or in public meeting hall
                               ii.      letters or drawings, regardless of nature, that are circulated or disseminated among the public or exposed for viewing by the public
                             iii.      all telecommunication, audio-visual media for the public.

Can Prime Minister be targeted for public to criticize against him?
To address these conflicting issues, the Human Rights Committee issued a general comment No. 34 during its 102nd session July 11-29, 2011[1] that when a State party “imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself” and “they must conform to the strict tests of necessity and proportionality.”  The comment states that all PUBLIC FIGURE, including those exercising the highest political authority such as HEAD OF STATE and GOVERNMENT, are legitimately subject to criticism and political opposition. You can see this comment in number 38 or you can click here to download this comment.
B) Maturity of politicians in Cambodia
Even some words are used to attack the state head but those are to improve the Cambodian development as well. Through Phnom Post newspapers quoted words from opposition party member that the head of government in Cambodia also ever use the bad words against opposition party members “We’ve heard from time to time language the prime minister has been using, like calling his opponents criminals, or dog, or cat, no brain – all kinds of words,”  But we don’t mind, as long as we can respond to that kind of language without facing serious consequences… Because you have a problem with freedom of expression in this country, when you set up another law to take people to court, you set up another law to summon restrictions of freedom of expression"
If the law are adopted it means that Cambodian politicians are not mature and they are not qualified to be representatives for Cambodian people. The civil society are not welcome this law because the powerless would be vulnerable, particularly the opposition.
By the ways “We have so many laws already; this is amid a criminalisation trend, so it’s another law,” said Yeng Virak, executive director of the Community Legal Education Center. “Millions of voters are the judge, not the courtroom. The people, they know good and bad behaviour of political leaders.”
Through the comment of Prime Minister who wanted to jail the person who use the bad words against him or other politicians. If this law is adopted, it also contradicts with national and international instrument which Cambodia ratified them such as Human Right Declaration of Human Right, ICCPR and so on.
Law Journal of Cambodia believe that through Prime Minister's comments should not be established such type of law, called "Law to Stop Personal Insult"

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