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"
Law Journal of Cambodia(LJC) is a non-political and independent team who volunteer working for disseminating laws and information regarding development and human rights situation in Cambodia. All comment or idea of LJC cannot be claimed in front of court and other purpose. LJC just provide ways for people to understand the context of law and other issues. LJC wants people to understand the law and live in peaceful means. If you need inquiry, please drop your e-mail to cambodianlawjournal@gmail.com. Facebook: http://www.facebook.com/law.cambodia If you want to join with group to discuss law please link here: http://www.facebook.com/groups/405507152815204/ Welcome all comments on this blog ព្រឹតិ្តបត្រច្បាប់កម្ពុជា (ព ច ក)គឺជាក្រុមឯករាជ្យ និងមិនមែនជាបក្សនយោបាយ ទេ ជាក្រុមស្ម័គ្រចិត្តដែល ធ្វើការ សម្រាប់ធ្វើ ការផ្សព្វផ្សាយអំពីច្បាប់ និងព័តមាន ដែលទាក់ទងនឹងការអភិវឌ្ឍ និងស្ថានភាព សិទ្ធិមនុស្សនៅកម្ពុជា។ រាល់មតិ យោបល់នៅក្នុងព្រឹត្តនេះមិនអាចយកទៅធើ្វជាអំណះ អំណាង ចំពោះមុខ តុលាការ រឺក្នុងគោលបំណងអ្វីផ្សេងទៀតឡើយ។ ព ច ក គ្រាន់ផ្តល់ នូវចំណេះដឹងច្បាប់ និងចំណេះដឹងផ្សេងៗទៀតដល់ប្រជាពលរដ្ឌប៉ុណ្ណោះ។ ប្រសិនលោក អ្នកចង់ដឹងព័តមានបន្ថែមអំពី ព ច ក សូមផ្ញើអីម៉ែលមកយើងខ្ញុំ។ យើងខ្ញុំសូមស្វាគមន៌រាល់មតិលំអដល់ ព ច ក៕
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