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