DISINFORMATION/INCITEMENT LAWS: NEW TOOLS TO SUPPRESS

UNCLAS SECTION 01 OF 02 PHNOM PENH 001643 SIPDIS SIPDIS SENSITIVE FOR EAP/MLS and EAP/RSP E.O. 12958: N/A TAGS: PHUM PREL CB KJUS SUBJECT: DISINFORMATION/INCITEMENT LAWS: NEW TOOLS TO SUPPRESS GOVERNMENT CRITICS? Reftel: Phnom Penh 1086 ¶1. (U) Summary: The government's legal means to suppress criticism has not been eliminated despite the partial decriminalization of defamation. Three recent cases, including those of two journalists and a former professor, illustrate that disinformation and incitement laws may be the new tools of choice to silence critics. Observers agree that decriminalization of defamation is not a panacea for ensuring freedom of expression; judicial independence and the respect for the rule of law are keys. End Summary. Journalists, Professor Under Fire -------------- ¶2. (U) On July 13, the prosecutor of the Phnom Penh Municipal Court charged Mr. Dam Sith, editor a pro-opposition newspaper Monakseka Khmer ("Khmer Conscience"),with disinformation, based on article 62 of the transitional Criminal Law (the UNTAC Law). The trail is scheduled for September 15. If found guilty, Dam Sith is liable for punishment of six months to three years in jail and a fine of one million to ten million riels (about USD 250-2,500). The government's lawyer filed a lawsuit against the editor following a May 13 article accusing Deputy Prime Minister Sok An of corruption. The prosecutor asked to see the information on which the article was based. The editor refused based on Article 2 of the Cambodian Press Law (1995) that allows the press to maintain confidentiality of its sources. Dam Sith has said he will respond to the court summons to appear in court on September 15, but is worried that he will be convicted due to political influence. Dam Sith's lawyer, Som Chamdina, noted that the court should apply the Press Law of 1995, and allow Dam Sith to publish an apology (which Dam Sith has offered to do) as allowed for under the Press Law. ¶3. (U) Incitement charges have also been used to silence critics, and were used against radio journalist Mam Sonando in October 2005 when the RGC accused Sonando of incitement in conjunction with the Cambodia-Vietnam border agreement. The most recent case occurred in early June 2006, when a journalist was arrested in relation to Tonle Bassac community-related violence (reftel). The journalist, Hem Chhoun, was charged with incitement and destruction of public property and is still in jail awaiting trial. Latest Arrest on Disinformation Charges -------------- ¶4. (U) Tieng Narith, a former 30-year-old lecturer of the Sihanouk Raja Buddhist University, was brought before an investigating judge at the Phnom Penh Municipal court on September 6 following his arrest on September 5. Investigating Judge Sao Meach charged Narith with disinformation and ordered him to be detained while awaiting trial. Two lawyers, So In from the Cambodian Center for Human Rights (CHHR) and Hong Kim Suon from the Cambodian Defender Project (CDP),defended Narith. Both lawyers complained that Narith was arrested without a warrant. ¶5. (U) So In said Narith was charged with disinformation under Article 62 of the Transitional Criminal UNTAC law. If found guilty, he could be jailed from six months to seven years and fined up to ten million riels (roughly USD 2,500) or either of the two penalties. So In added that Narith may not be mentally competent to stand trial. ¶6. (U) Stating that the investigating judge denied bail for Narith, CDP's lawyer said he would file an appeal. At the end of the court hearing, military police pushed Narith quickly into a car, preventing him from talking to family members or reporters. Members of the military police said Narith was detained at their headquarters prior to sending him Prey Sar Prison. ¶7. (SBU) It is unclear why Narith was charged, but his family speculated that the arrest is connected with Narith's unpublished book, in which he wrote about several high-profile politically-related crimes including the 1997 grenade attack against the Sam Rainsy Party, as well as the death of famous film actress Pisith Pilika. Narith's father said his son's that his son's mental state is not normal. Tieng Narith was fired from his job at the University on August 22, three months after first introducing his political philosophy students to his book. The prison recently sent him to a local hospital for a mental examination. Incitement, Disinformation and Defamation -------------- ¶8. (U) Incitement is codified in Articles 59, 60, and 61 of UNTAC law. Article 59 states that speech directly causing someone to commit a felony is incitement. Article 60 is broader and states that speech that directly causes someone to attempt to commit a felony or misdemeanor is incitement. Article 61 states that speech PHNOM PENH 00001643 002 OF 002 directly causing racial, national, or religious hatred is incitement. However, none of the three articles takes a person's intent into account nor the veracity of what is said. Incitement is punishable by imprisonment of one month to one year, a fine of one million to ten million riels (USD 250-2,500),or both. ¶9. (U) Article 62 of UNTAC law describes the disinformation law in Cambodia, which refers to the publication of false information with malicious intent that is likely to disturb the public peace. Punishment can be six months to three years in prison, a fine of one million to ten million riels, or both. ¶10. (U) Article 63 on Defamation and Libel was amended by the National Assembly, which partially decriminalized the law by eliminating any jail term to the sentencing. Removing prison sentences from defamation charge is a welcome, positive step. However, defamation remains a criminal offense, and people are still subject to criminal fines. This poses a lingering threat to critics, as, under Cambodian law, failure to fulfill financial penalties warrants imprisonment. (Note: A writer based in Australia, Julio Jeldress, will be tried in absentia on September 15 for defamation stemming from remarks critical of PM Hun Sen that were published by the Cambodia Daily newspaper in 2005. End Note.) Local and International NGO Opinion -------------- ¶11. (SBU) By decriminalizing defamation, some in the human rights' community have raised concerns that the government is using disinformation and incitement -- both which carry longer prison terms and fines compared to defamation -- to suppress criticism. The UN Office for Human Rights director Margo Picken has noticed that the use of incitement charges has become a pattern, but she has yet to see disinformation charges used systematically. She added that disinformation requires a higher standard of proof for conviction. More disturbing though under Cambodian law is that an investigating judge can place the accused in jail for up to six months before a case goes to trial. She has observed cases where the accused was put in prison and charges were dropped just before the six months ended. ¶12. (SBU) Sok Sam Oeun, Executive Director of Cambodian Defenders Projects (CDP) noted that decriminalization of defamation alone is not sufficient to guarantee freedom of expression. Judicial reform and the independence of the judiciary is the key. Without an independent judiciary, judicial officials will still be subject to executive interference, and the ensuing misinterpretation of the law should be expected. ¶13. (SBU) Kek Galabru of NGO LICADHO commented that article 63 on defamation as well as other related articles should be decriminalized completely. She agrees that political will is the important determinant. The government can always interpret the law to meet their ends, when they are not committed to allow critics to express their opinions. ¶14. (SBU) Herb Bowman of East West Management Institute (EWMI) notes that criminalizing or decriminalizing of law is not the point. He believes what is important is the law's application and the respect for the rule of law. He said that in Western countries, disinformation, and incitement, and in some cases, defamation are standard parts of the legal code. But in these countries the government does not abuse these legal clauses to silence critics. Comment -------------- ¶15. (SBU) These instances of applying disinformation and incitement charges to critics of the government suggest that while the international community made headway against defamation when it was a high-profile issue last year, there remain other legal tools at the RGC's disposal. These cases, coupled with the National Assembly's recent passage of legislation to restrict MPs' speech under certain conditions, indicate that the RGC remains sensitive to criticism and derogatory information about high-level RGC officials. Mussomeli